Federal Court of Australia

BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 328

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals a decision of a judge of the Federal Circuit Court of Australia (as it then was) made on 17 December 2020, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal: BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 3397 (Judge Kelly). The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the appellant a Permanent Protection (Class XA, Subclass 866) visa. In this court, the appellant relied on two grounds of appeal corresponding to two grounds of review that were rejected by the primary judge: first, that one of the Tribunal’s central findings was irrational or based on no evidence, and second, that the decision of the Tribunal was affected by apprehended bias. For the reasons that follow, I have determined to dismiss the appeal with costs.

2    The relevant history can be summarised as follows. The appellant is a citizen of India who arrived in Australia in 2008 as a dependent of his wife, who was the holder a student visa. The appellant was subsequently issued with a bridging visa and then a Subclass 487 visa which was cancelled on 14 January 2016. In February 2017, following the cancellation of his Subclass 487 visa, the appellant applied for the protection visa. On 8 March 2017, a delegate of the Minister decided pursuant to s 65 of the Migration Act 1958 (Cth) to refuse to grant the protection visa. The appellant sought review of that decision by the Tribunal. On 1 June 2017, the Tribunal affirmed the delegate’s decision. The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 1 February 2018, Her Honour Judge Hartnett made orders by consent for the issue of writs of certiorari and mandamus, noting that the Minister accepted that the Tribunal fell into jurisdictional error in failing to comply with s 424A of the Migration Act by failing to put certain information to the appellant for comment. The appellant’s application to the Tribunal for review of the delegate’s decision was then allocated to a different member. On 18 February 2019 the Tribunal affirmed, for the second time, the delegate’s decision to refuse the application for a protection visa. The appellant sought judicial review of the Tribunal’s second decision. That proceeding was dismissed, from which order the appellant now appeals.

Background

3    In his protection visa application, the appellant stated that he had last entered Australia on 26 March 2008, and that he had not been to Australia before. The appellant disclosed that he had been convicted of offences relating to family violence, and nominated the date of conviction as 5 January 2016. The appellant’s claim for protection was based on a claim that he feared he would be tortured by the police if he returned to India. That fear was claimed to arise from the appellant having witnessed the result of police perpetrating cruel behaviour upon a journalist named Lakhwinder Singh, who worked for the Hindi language newspaper Dainik Jagran. The appellant claimed in his application for the protection visa that he had faced torture by the police in the past, had been treated badly by police, and that the police wanted him to change a statement and not to produce himself as a witness in a court case concerning the journalist’s mistreatment.

4    The delegate who considered the appellant’s application made no substantive findings in relation to the appellant’s claims other than to say that the appellant was extremely vague in recounting his claims at his protection visa interview, and that the delegate had concerns about his credibility. The delegate refused the application on the ground that the appellant could enter and reside in Nepal, relying on s 36(3) of the Migration Act, and citing Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; 215 FCR 35.

5    The appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal conducted a hearing at which the appellant was assisted by an interpreter. In its statement of reasons the Tribunal recorded that it discussed with the appellant information in the departmental file that indicated that his fingerprints were matched to a person with a different name who was arrested in Australia in 1985 for handling stolen goods. The Tribunal also recorded that it put to the appellant that in a police interview in 2009, his wife had stated that he had entered Australia 15 years earlier. The appellant denied that he had travelled to Australia before 2008, or that he had been arrested in 1985, and stated that his wife was not in a position to know about these matters. The Tribunal also put these matters to the appellant in a letter sent pursuant to s 424A of the Migration Act and invited the appellant to comment on or respond to the information, which the appellant did by denying travel to Australia before 2008, and inviting the Tribunal to contact his wife.

6    On 1 June 2017, the Tribunal affirmed the delegate’s decision, finding, inter alia, that it did not accept that the appellant first entered Australia in 2008, and finding that he was present in Australia in 1985 when he was arrested for handling stolen goods. The Tribunal stated that it had concerns about the appellant’s claimed identity, and that it had cause for doubt about the truthfulness of his claims for protection. The Tribunal considered the appellant’s claims, and the evidence that he gave at the hearing about an Indian court proceeding at which he claimed to have given evidence, and stated that the appellant’s evidence as to the claimed events in India was vague and contradictory. The Tribunal also referred to material before the Tribunal that indicated that the appellant had been arrested and in some cases convicted in respect of a number of criminal offences since he had been in Australia. The Tribunal considered that these matters, together with his arrest under an alternative name for receiving stolen goods indicated that he had little respect for Australian laws and reflected poorly on his credibility. The Tribunal did not accept the appellant to be a credible witness, and rejected the factual basis of his claim for protection.

7    As I referred to in the introduction, on 1 February 2018, and with the Minister’s consent, Her Honour Judge Hartnett of the Federal Circuit Court (as it was then known) ordered that a writ of certiorari be issued, quashing the Tribunal’s decision. The court’s orders noted that the Tribunal had fallen into jurisdictional error in failing to comply with s 424A of the Act by failing to put to the appellant for comment information which was before it, that he had been arrested and convicted of a number of criminal offences in Australia, which with other of the Tribunal’s findings was the reason, or part of the reason, for affirming the decision under review.

8    The application was then heard again by a differently constituted Tribunal which on 18 February 2019 affirmed the delegate’s decision. This second decision of the Tribunal was the subject of the application to, and decision of, the Federal Circuit Court, which decision is now under appeal. Further references in these reasons to the Tribunal’s decision are to the second decision unless otherwise indicated.

The proceeding before the Tribunal

9    The Tribunal conducted a hearing on 11 December 2018. Documents in the appeal book show that a Punjabi interpreter was arranged to assist the appellant. The appellant gave evidence by video-link from an immigration detention centre. In its written statement, the Tribunal recorded the appellant’s claims as follows –

14.    The applicant claims that a journalist, Lakhwinder Singh, rented out part of the applicant’s family home. Lakhwinder was a journalist for the newspaper Dainir Jagran and wrote stories on police corruption including that they took bribes and used excessive force. The police took Lakhwinder and beat him. The applicant saw the result of the beating.

15.    Lakhwinder lodged a case against the police, and against police officer SSP Bhullar in particular, and the applicant was a witness. The police came and took the applicant to the police station and beat him and held him for three days and then released him.

16.    The applicant gave evidence again for the trial and the police came and took him to the station and beat him very badly this time and held him for three days. His father had to pay the police one and a half lakhs as a bribe to have the applicant released.

17.    After this the applicant did not stay at his home regularly but would stay there sometimes and then at his in-laws, his sister-in-law’s or his family village. He then arranged to come to Australia with his wife and child. After he came to Australia he heard that the police had come looking for him. He fears that if he returns the police will detain him and harm him again. He has not had any contact with Lakhwinder since coming to Australia and his family said Lakhwinder’s clothes were still in their family home.

10    The Tribunal had before it the letter sent by the first Tribunal pursuant to s 424A of the Act, together with the appellant’s response. In addition, following the hearing the Tribunal sent its own letter dated 12 December 2018 to the appellant which raised two issues for comment. The preamble in the letter included the following statements –

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

(Bold in original.)

11    As to the information, the first issue raised by the letter related to the appellant’s criminal history in Australia. In that respect, the letter stated –

Information on the Department file from Victoria police indicates that you were charged on 29 November 2009 with family violence offences, and on being bailed breached your bail an hour later by returning to the property and you were subsequently arrested and remanded in custody and charged with assault related charges. The information indicates you received a conviction and a community based order in February 2010.

At hearing before me you said once you were convicted to 50 hours community work, once a good behaviour bond, now you had been convicted to 8 months prison in relation to family violence.

Information on the Department file from Victoria Police states that when they arrested you on 28 November 2009 you were fingerprinted and the police confirmed the fingerprints were matched to another male known to police as Ashok Ashok Kumar (12/10/1962) who was arrested for handling stolen property in 1985 and was returned to India.

This information is relevant because it may lead the Tribunal to the view that you were in Australia previously in 1985 where you were charged with offences, and that you have been convicted more recently of family violence offences, and that your criminal offending indicates you have little respect for Australian laws which may lead the Tribunal to consider that you are not credible.

The consequence of this information being relied on is that this, subject to any comment or response you make, would be the reason, or a part of the reason for affirming the decision that is under review.

12    The second issue concerned the receipt of information from the Department of Home Affairs Country Research section, in relation to which the letter stated –

The Tribunal sent a request for country research to the Department of Home Affairs Country Research section. In a response dated 26 October 2018, the country researcher responded to that request, and a copy of that response is attached. In summary, the response indicated that:

•    A search of the District Court in Jalandhar was conducted but did not locate the name Lakhwinder Singh in the years 2004 – 2005;

•    The researcher searched a variety of databases and did not find reports of a court case or police mistreatment of a Dainik Jagran journalist named Lakhwinder Singh;

•    The researcher did however find some reports of police mistreatment of Dainik Jagran journalists in earlier years, in Delhi and Ludhiana.

This information is relevant as the inability of the researcher to find reference to the claimed case lodged by Lakhwinder Singh, or any media reports of such a case, whilst able to find other cases, may indicate that the claims you have made are not true and you have invented the claim that Lakhwinder Singh lodged a cases against a police officer and you were a witness in that case. This may lead the Tribunal to find that your claims of what happened to you are not true, that you did not suffer harm in the past and would not suffer harm in the future for these or any other reasons.

The consequence of this information being relied on is that this, subject to any comment or response you make, would be the reason, or a part of the reason for affirming the decision that is under review.

13    The letter attached an excerpt of the researcher’s response.

14    The appellant responded to the Tribunal’s s 424A letter. In relation to the first issue, the appellant confirmed that he had been charged with a family violence offence which resulted in orders for community work, a good behaviour bond, and a term of imprisonment of eight months. The appellant also confirmed that he had been arrested by the police in 2009. It is unclear from the letter whether the conviction to which the appellant referred in his letter included a conviction in relation to any 2009 charges. Other material before the Tribunal supported a finding that the appellant had been convicted of family violence offences in January 2016, in respect of which he was sentenced to eight months’ imprisonment. The appellant denied that he had been to Australia prior to his claimed arrival in 2008, and expressed surprise that the fingerprints matched another person. He further stated –

This information is [irrelevant] and baseless as if it was true the police would have questioned me when they arrested me in 2009 [which] they never did. I don’t know how [AAT] is bringing this and on what basis.

I have [maintained] a good character since [I] have been in [A]ustralia from 2007 apart from the family violence. [I] have never been [charged] of whatsoever of any another offence.

15    To the second issue, the appellant responded that the researcher’s inability to find a reference to the case did not mean the events did not occur. The appellant raised matters of population size, court workload, lack of audio or video recording facilities and corruption as an explanation for why the researcher may not have found a reference.

The Tribunal’s decision

16    In its written decision, the Tribunal identified the material before it, being the Tribunal’s file, the first Tribunal’s file, and the Department’s file. After summarising the legislative criteria for a protection visa, the Tribunal identified the key issue for its determination to be whether the appellant had a well-founded fear of persecution if he returned to India, or whether there was a real risk he would suffer significant harm if he was removed from Australia to India.

17    As a preliminary matter, the Tribunal noted that in addition to its s 424A letter and the appellant’s response, it also relied on the s 424A letter issued by the first Tribunal, to which I referred at [5] above, and the appellant’s response to it. The Tribunal acknowledged that the appellant had participated in the hearing by video and had been in detention for a number of years, and stated that accordingly that the Tribunal did not base its credibility findings on the appellant’s demeanour.

18    The Tribunal did not accept the majority of the appellant’s claims, finding that they had been invented by the appellant. At [45] of its reasons, the Tribunal stated –

45.    I have considered the above, individually and cumulatively. I have not accepted key aspects of the applicant’s claims. I find that the information before me, that I accept, does not establish that there was any court case or that the mistreatment of Lakhwinder that led to that case occurred. The concerns with the applicant’s claims to have been in hiding and the delay in seeking protection cause me further doubts about the claims he has made. These concerns lead me to find that the applicant has invented his claim and that these things have not occurred. This leads me to find that the applicant is not credible or a witness of truth in providing his claims.

19    The reasons went on to identify specifically the claims which were not accepted. In particular, the Tribunal did not accept the claims that the police took and beat the journalist Mr Singh, nor that the appellant saw the result of that beating, nor that Mr Singh lodged a case against the police, nor that the appellant was a witness in that case, nor that the police mistreated or detained the appellant in connection with the case, nor that the appellant came to Australia with his family in connection with any of these claims.

20    These findings were prefaced with a discussion under the following sub-headings –

(a)    Lack of detail – the Tribunal found the appellant’s evidence about the court case in which he claimed to have appeared as a witness to be brief and undetailed. The Tribunal fastened onto the appellant’s uncertainty about whether the case was civil or criminal, and when the case was heard –

26.    At the hearing the applicant was able to give very few details about this claimed court case. I asked him what type of case it was and whether it was civil or criminal. He did not answer the question and then said that he had gone as a witness. I noted that that was why I supposed he could not tell me any details about the court case. He then said it was not a civil case, it was a case that Lakhwinder published some news and they were threatening him not to publish the news again. He said this happened in 2004 and 2005 but could not be more precise about the timing of the case. He said it was a long time ago. He said it started before his marriage and he went to Jalandhar court to be a witness. The applicant said that he did not know how long the hearing of evidence went on but the case had not concluded before he left India in 2008 for Australia. He said he did not know if the case had been decided since then. The applicant said after he gave evidence the police came and took him for three days and beat him. He said he gave evidence again in 2006 and the police took him again and beat him and his father had to pay money to get the applicant released.

The Tribunal expressed its concern that the lack of detail “may indicate” that the events did not occur, and that when considered with other of the Tribunal’s concerns, it caused grave doubts about the appellant’s claims and credibility.

(b)    No information located about the claimed events – the Tribunal referred to the lack of research results obtained by the researcher from the Department of Home Affairs Country Research section (see [12] above). The absence of media reporting about the alleged mistreatment of Mr Singh was regarded as “very significant”, and the Tribunal concluded that the appellant was not a witness to the mistreatment or aftermath of the mistreatment of Mr Singh, and did not give evidence in a court case. This finding formed the basis of a ground of appeal, and so the text of the Tribunal’s findings is relevant –

33.    I have carefully considered the applicant’s response. I accept that there are limitations to the information provided. The researcher notes that searches would have been more viable if they had had a case number, case year, and district. I note that these details have not been provided by the applicant. However, I do consider that the searches conducted by the researcher, within the constraints, have some relevance to the question of whether such a case existed. Of more relevance is the researcher’s searching of media reports about Lakhwinder Singh and the case the applicant claims Lakhwinder brought against the police, and did not find reports of a court case or police mistreatment of a Dainik Jagran journalist named Lakhwinder Singh. I consider this highly significant – there is no record to be found in the sources searched of claimed police mistreatment and a case filed by a journalist of a newspaper with the highest Hindi readership in India. And further, the researcher was able to find reports earlier than 2004/2005 of Dainik Jagran reporters being mistreated by police. I note that the search was limited to English language sources, but that the researcher was still able to locate two other instances of police mistreatment but no record of the events claimed by the applicant.

34.    I do not accept the applicant’s explanations for why there is no record of the court case – whilst the Indian justice system has many difficulties, the information from the researcher is that courts in which the case might have been lodged have electronic records. The district court of Jalandhar was searched by the researcher with no result. But even if it is accepted that there are limitations on this searching, I consider the search by the researcher of media reports into the claimed incidents to be very significant – not only were they unable to find anything about Lakhwinder Singh, but they were able to find two news articles about other Dainik Jagran journalists suffering police mistreatment. What this indicates to me is that there is a high likelihood that, had Lakhwinder Singh, a journalist with Dainik Jagran, indeed been mistreated, and lodged a court case, that this would have been reported and located by the researcher in their searches. On the above reasoning, I give the fact that nothing about the events the applicant claimed in relation to Lakhwinder Singh was located very significant weight.

35.     Having carefully considered his response, I find that it does not address or displace my concerns that the researcher was not able to locate information about the claimed events. I find that the lack of information found by the researcher indicates that Lakhwinder Singh, a Dainik Jagran journalist, was not mistreated by the police and did not file a case about this mistreatment.

36.    With my concerns above about the lack of detail the applicant was able to provide about the case, this leads me to find that the applicant was not a witness to the mistreatment or aftermath of the mistreatment of Lakhwinder, and did not give evidence in a court case. It leads me to consider that the applicant may have invented the claim that Lakhwinder Singh lodged a case against a police officer and he was a witness in that case, and to consider that the applicant’s claims of what happened to him are not true, and that he did not suffer harm in the past as claimed. This also leads me to have concerns with the applicant’s general credibility.

(c)    In hiding – the appellant claimed that after he had been beaten for the second time, he successfully avoided the police finding him for almost two years by staying with various relatives. The Tribunal did not accept that the appellant was in hiding as claimed, noting that his story changed under questioning and he was unable to explain why, if the police had been looking for him, they had been unable to find him at his relatives’ home. This led the Tribunal to disbelieve that the police had any interest in him and caused the Tribunal further concerns with his overall credibility.

(d)    Delay – the Tribunal was not persuaded by the appellant’s explanation for his delay in lodging an application for a protection visa, that he previously held another visa and was not aware that he could apply for a protection visa until a case officer at the detention centre told him. The Tribunal noted that the appellant had told the first Tribunal that the delay was explicable by his perception that he had a clear immigration pathway to attain citizenship attached to his wife’s student visa. The Tribunal considered that if the appellant had suffered the harm he claimed, he would have sought a more immediate and durable way than a student visa. The Tribunal expressed doubt about the appellant’s subjective fear of returning to India, and further doubt as to his overall credibility.

(e)    The appellant’s identity and his criminal history – the Tribunal referred to the appellant’s criminal history in Australia, as raised with him during the hearing and in writing. The Tribunal stated at [43] and [44] of its reasons –

43.    I have put the applicant on notice at the hearing, and also put to him pursuant to ss.424A and 424AA these matters. However, I place little weight on them because I do not consider them to be of direct relevance to the applicant’s claims. I have had regard to the information on the Department file that the applicant’s fingerprints were matched to those of Ashok Ashok Kumar who was arrested in Australia in 1985 for handling stolen goods, that when interviewed by police in 2009 his wife is reported to have stated that the applicant had come to Australia about 15 years earlier. The applicant has responded to this information multiple times, denying that he had come to Australia prior to 2008. The fingerprint match appears to me to be reasonably substantive information on which to base a conclusion that he was in Australia under another name, and was charged at that time, but ultimately I do not consider that the fact of whether or not he was in Australia, under a different identity, and having been arrested but not convicted is relevant to the questions under consideration. Nor do I consider that making a decision one way or the other on this information which is not relevant to his claims can allow me to take a view one way or the other about the credibility of his claims. I therefore give no weight to the information in making this decision.

44.     Similarly with the recent charges and convictions on family violence matters. The applicant has admitted to these and I find that they did occur, but I give no weight to this information in making this decision.

21    Having rejected the appellant’s claims which formed the basis of his application for a protection visa, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.

22    The Tribunal then considered but was not satisfied that the appellant met the complementary protection criterion in s 36(2)(aa).

The application to the Federal Circuit Court

23    The application for judicial review to the Federal Circuit Court contained three grounds. The first and third of those grounds correspond to the grounds of appeal that were maintained in this court.

24    The first ground was that the finding of the Tribunal that the journalist, Mr Singh, was not mistreated by the police and did not file a case about such mistreatment, based on the lack of information located by a researcher, was irrational or was effectively a finding based on no evidence, in that it could not rationally be sustained by the evidence on which the Tribunal relied for the finding. The primary judge found that, upon a fair reading of the Tribunal’s reasons as a whole, it was open to the Tribunal to make the findings it did on the material before it. Consequently, the primary judge rejected the claim that the Tribunal’s finding which the first ground sought to impugn was illogical or irrational in the sense necessary to establish jurisdictional error. The primary judge similarly rejected the claim that there was no evidence for the Tribunal’s finding.

25    The second ground was that the Tribunal failed to give proper consideration to the appellant’s explanation for delay in applying for a protection visa in making its findings referable to that matter, and that the Tribunal’s rejection of the appellant’s explanation was based on irrational reasoning. The primary judge found that the Tribunal did give proper consideration to the appellant’s explanation in rejecting it, and that the path to such finding was open to it.

26    The third ground raised the issue of apprehended bias. The appellant claimed that the Tribunal had before it information about the appellant’s convictions for family violence that was prejudicial and irrelevant to the review, which the Tribunal nonetheless put to the appellant in the s 424A letter for comment, and in respect of which the Tribunal made a positive finding that offending had occurred. The primary judge rejected this ground, finding that a reasonable, properly informed lay observer conscious of the core function of the Tribunal and the statutory context in which the review was to occur would not have considered that the Tribunal might not have brought an impartial mind to the resolution of the questions to be decided; namely, whether the appellant held a well-founded fear of persecution or substantial reasons for believing that the appellant would suffer significant harm if he returned to India.

The appellant’s grounds of appeal

27    The first and third grounds of appeal were maintained by counsel for the appellant, and the second ground was abandoned. The notice of appeal set out grounds one and three as follows –

1.    The Federal Circuit Court erred in failing to find that the Tribunal’s finding that the journalist Lakhwinder Singh was not mistreated by the police and did not file a case about such mistreatment, based on the lack of information located by a researcher, was irrational or was effectively a finding based on no evidence, in that it could not rationally be sustained by the evidence on which the Tribunal relied for the finding.

…

3.    The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by apprehended bias, in that the Tribunal had before it and considered prejudicial information that was irrelevant to the review.

Particulars

(a)    The Tribunal had before it information indicating that the applicant had been convicted of criminal charges relating to family violence.

(b)    The Tribunal considered that the information would be the reason or part of the reason for affirming the decision under review and put the information to the applicant for comment.

(c)    The information was prejudicial and was not relevant to the review.

(d)    The Tribunal made a positive finding that the offending referred to in the irrelevant information occurred.

(e)    The Federal Circuit Court erred in finding that the Tribunal’s consideration of the irrelevant and prejudicial information did not give rise to a reasonable apprehension of bias.

Resolution of the appeal

28    I will address the appellant’s grounds of appeal in reverse order. That is because if ground three relying on a claim of apprehended bias succeeds, then constitutional writs will have to issue and the application would have to be reheard by a differently constituted Tribunal. This approach is in harmony with the position of an intermediate court of appeal where a claim of apprehended bias is raised as a ground of appeal together with other grounds, where the claim of apprehended bias should be considered first: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117] (Kirby and Crennan JJ).

29    I approach the appellant’s grounds of appeal on the basis that this is an appeal by way of rehearing where the primary judge enjoyed no relevant advantage over this court, and that if I come to a different view to that taken by the primary judge on the principal issues, then I should give effect to my view: AFD21 v Minister For Home Affairs [2021] FCAFC 167; 393 ALR 398 at [40] (Kenny, Kerr and Wheelahan JJ).

Ground three – the appellant’s submissions

30    The appellant’s submissions on this ground concerned the first issued raised in the s 424A letter sent by the Tribunal, to which I referred at [11] above, being information about the appellant’s family violence convictions and a fingerprint match to a person who was arrested for handling stolen property in 1985. Counsel for the appellant characterised this information as irrelevant and prejudicial, and submitted that the fact that the Tribunal had this information before it, and that it considered it in the review, gave rise to a reasonable apprehension of bias. Counsel claimed that the s 424A letter indicated that the Tribunal treated this information as not only relevant to the review, but potentially decisive. Counsel emphasised two aspects of the letter. First, that it stated the information “would be the reason or part of the reason for affirming the decision”, subject to any comment or response from the appellant. Second, that it explained the information was –

… relevant because it may lead the Tribunal to the view … that you have been convicted more recently of family violence offences, and that your criminal offending indicates you have little respect for Australian laws which may lead the Tribunal to consider that you are not credible.

The consequence of this information being relied on is that this, subject to any comment or response you make, would be the reason, or a part of the reason for affirming the decision that is under review.

31    Whilst acknowledging that the Tribunal later stated in its reasons that this information was irrelevant, counsel for the appellant claimed that by sending the s 424A letter, the Tribunal had already deviated from the true course of decision-making because the Tribunal not only considered the substance of the information, but also considered the information to be potentially decisive of the review and wrote to the appellant about it after having already raised the matter orally with the appellant at the hearing. Counsel submitted that the Tribunal had regard to the information, discussed it at length and made findings of fact about it in its reasons, before asserting that it had given no weight to the information. In that regard, counsel relied on the observation of Nettle and Gordon JJ in CNY17 v Minister for Immigration [2019] HCA 50; 268 CLR 76 (CNY17) at [69] and separately the Full Court of this court in FSG17 v Minister for Immigration [2020] FCAFC 29; 274 FCR 456 (FSG17), to advance an argument that it was significant that the Tribunal did not, at the outset, put to one side the irrelevant and prejudicial information. Counsel submitted that that is a sufficient basis for concluding that a reasonable observer might apprehend that the Tribunal might have been swayed from the proper course of decision-making, and that the possibility of such apprehension was further strengthened by the adverse credibility findings which were central to the Tribunal’s decision.

32    Counsel for the appellant submitted in writing that in the proceeding below both parties had agreed that the information before the Tribunal was irrelevant to the review and prejudicial. At the hearing of the appeal, I raised with counsel for the appellant where the agreement was to be found, and in what sense of the term “irrelevant” did the parties so agree. Counsel stated that the agreement was noted in the judgment, and that it would have been in the parties written submissions which the court did not have, and stated that the question would have to be “on notice”. I can find no reference to such an agreement in the primary judge’s reasons. Counsel for the Minister did not address in his written submissions, still less dispute, the submission of counsel for the appellant that in the proceeding below both parties had agreed that the information before the Tribunal was irrelevant to the review and prejudicial. At the hearing of the appeal, counsel for the Minister did not address me on the question whether there was agreement between the parties on this issue below. I will return to this issue in the course of my analysis.

Ground three – the Minister’s submissions

33    Counsel for the Minister identified an issue of principle in dispute between the parties, being what information can be considered when assessing apprehended bias. Counsel for the Minister submitted, by reference to the reasons for judgment of Kiefel CJ and Gageler J (at [20]) and Edelman J (at [136]) in CNY17, and the Full Court in FSG17, that the court can look to the Tribunal’s reasons in assessing apprehended bias, such that purported apprehended bias can be assuaged by later statements within the decision maker’s reasons.

34    Counsel sought to distinguish the present case from CNY17 and FSG17 in submitting that the Tribunal did not keep the information hidden, but rather put the appellant on notice of the prejudicial information, thereby assuring a fair-minded lay observer of its impartiality. Counsel further submitted that, unlike in FSG17, the information the subject of the s 424A letter was not so prejudicial that a fair-minded lay observer might apprehend that the subconscious effect of such evidence might mean that the Tribunal might not bring an impartial mind to the review.

35    Counsel referred to the background to the s 424A letter, being that the Tribunal put adverse information to the appellant at the hearing as noted at [43] of the Tribunal’s reasons. It was submitted that the Tribunal did not make any real finding of fact adverse to the appellant regarding the family violence convictions: those matters were admitted and not in dispute.

Ground three – analysis

36    I accept the submission of counsel for the appellant, who had appeared below, that the proceeding before the primary judge was argued upon an accepted premise that the impugned information referred to in the amended originating application below was to be characterised as irrelevant to the review before the Tribunal and as prejudicial to the appellant. The submission was not disputed by counsel for the Minister, and further the primary judge’s reasons are consistent with the matter having been argued on that premise, because they appear to assume that the information relating to the appellant’s convictions for family violence offences was irrelevant and prejudicial. I should say that I understand the term “irrelevant” in this context in the same sense explained by Kiefel CJ and Gageler J in CNY17 at [6], namely that the information was not capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Tribunal might be required to make a finding in the conduct of its review: cf, Evidence Act 1995 (Cth), s 55. I observe that the term “irrelevant” might be used in other senses, including as being immaterial to the decision arrived at upon review.

37    There is, however, one feature of the application below, and of the primary judge’s reasons to note in this context, which relates to the identification of the impugned information. The amended originating application before the court below relied only on the Tribunal’s possession of information that the appellant had been convicted of criminal charges relating to family violence as being prejudicial and irrelevant to the review. No reliance was placed on the information relating to the fingerprinting of the appellant in 2009, and the claim that it matched a person with another name who had entered Australia 15 years earlier and who had been charged with the handling of stolen goods and who was returned to India. At [142] of the primary judge’s reasons for judgment, his Honour noted that the submissions put on behalf of the appellant below traversed matters going beyond the particulars of apprehended bias by relying on the information about the fingerprinting. His Honour held that it was appropriate to determine the ground of review raising the claim of apprehended bias by reference to the way in which it was framed, and his Honour’s reasons thereafter focus on the information relating to the family violence convictions. Similarly, the notice of appeal before this court identifies the information which is the subject of the ground relating to apprehended bias as “information indicating that the [appellant] had been convicted of criminal charges relating to family violence”. There is no reference in the notice of appeal to the fingerprinting information. However, in written and oral submissions before this court counsel for the appellant addressed information relating to both the family violence convictions and the fingerprinting. I will address the appellant’s case as argued.

38    I will commence my consideration by identifying the relevant principles. One of the most important of those is that the question whether there is a reasonable apprehension of bias is largely a factual one: Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 (Isbester) at [20] (Kiefel, Bell, Keane and Nettle JJ). Particular cases may serve to illustrate the principles, but cases involving questions of apprehended bias are fact-dependent. Furthermore, a conclusion as to whether there is a reasonable apprehension of bias is often a matter of impression, and facts often strike reasonable minds in different ways, as shown by the different views taken of the facts in many of the leading authorities such as the judgments in the New South Wales Court of Appeal and in the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283, and more recently in CNY17.

39    In relation to judicial decisions, the foundational principle is that stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), namely that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The application of this principle involves two steps: (1) identification of the factor which it is said might lead the judge to decide the case otherwise than on its legal and factual merits; and, (2) an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits: Ebner at [8]; CNY17 at [21]; cf Isbester at [59] (Gageler J) where three steps are articulated, the additional third step being consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way, citing by way of comparison Ebner at [8]. At the same time, a finding of apprehended bias is not to be reached lightly: CNY17 at [56] (Nettle and Gordon JJ), citing Re JRL; ex parte CJL [1986] HCA 39; 161 CLR 342 at 371 (Dawson J).

40    One category of case where circumstances have been held to give rise to a reasonable apprehension of bias is where the decision-maker is in possession of irrelevant and prejudicial information: Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74 (Deane J). Whether a reasonable apprehension of bias arises in this type of situation must depend upon all the circumstances, the conclusion being largely a factual one: see CNY17 at [101] (Nettle and Gordon JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24; 284 FCR 455 (CQZ15) at [100] (Kenny, Bromberg and Anderson JJ).

41    These principles are appropriately adapted in the case of administrative decision-makers so as to recognise differences between the type of decision-making having regard to the relevant statutory provisions under which a decision is made, the attributes of the person upon whom the decision-making function is conferred, and the procedures to which the decision-maker is subject: see, Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [98]-[100] (Gleeson CJ and Gummow J) and [179]-[180] (Hayne J). In the case of the Administrative Appeals Tribunal performing a review function under the Migration Act, it is relevant that the Tribunal’s members are appointed by the Governor-General, it conducts its review in an inquisitorial way, has available to it statutory powers to get information, and has statutory obligations to accord procedural fairness such as that under s 424A of the Act, to which I will return. In this case, as is the usual position in reviews by the Tribunal under the Migration Act, there was no contradictor, and because of the nature of the Tribunal’s inquisitorial function and its statutory obligations, there was no possibility that the Tribunal could conduct its review with the inscrutable face of the Sphinx. It therefore fell to the Tribunal to test and consider the appellant’s claims with some of the consequences referred to by the court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 at [30] (Gleeson CJ, Gaudron and Gummow JJ) –

Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

42    Otherwise, it remains that the fair-minded lay observer will expect that the Tribunal will adhere scrupulously to a standard of independence and will be free of prejudice: CNY17 at [53] (Nettle and Gordon JJ).

43    To illustrate the application of the principles to which I have referred, I will address briefly the circumstances that arose in CNY17, and to reasons of the majority justices, Nettle and Gordon JJ, and Edelman J. CNY17 concerned a review by the Immigration Assessment Authority under Part 7AA of the Migration Act. The Authority did not have jurisdiction to review a decision refusing a visa on character grounds that would engage the discretion in s 501, or that would engage the disqualifying criteria in s 5H(2), 36(1C), or 36(2C)(a) or (b) of the Act. Under s 473CB(1) of the Act, the Secretary of the Department was required to give to the Authority material, including “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review”. Section 473DB(1) of the Act required the Authority to review the referred decision by considering the review material provided to it under s 473CB. Pursuant to s 473DA(2), there was no obligation on the Authority to provide the referred applicant with any material that was before the Minister. The circumstances in which the Authority could get or consider new information were limited by ss 473DC and 473DD. Under s 473DE, there was a qualified obligation on the Authority to give the referred applicant particulars of new information if it would be the reason or part of the reason for affirming the referred decision.

44    The referred applicant’s visa application disclosed a conviction relating to the breaking of a window while in detention, and disclosed charges that were pending and which related to an incident during protests on Christmas Island while the referred applicant was in detention. In addition, in giving material to the Authority the Secretary included 48 pages of departmental documents that made allegations that bore unfavourably on the conduct of the referred applicant in his engagement with the Department, and while in detention. That material was described as involving “prejudicial opinion, innuendo and tacit suggestion”, and comprised a very large part of the material that was provided to the Authority: Edelman J at [110]-[111]. The referred applicant never had these documents, was unaware of them until he sought judicial review of the Authority’s decision, and their contents were irrelevant to the task of the Authority and prejudicial to the applicant.

45    Nettle and Gordon JJ attributed to the fair-minded lay observer knowledge of the key aspects of the statutory scheme, to which I have referred above. At [95] and [98], their Honours identified that the Authority had to consider the information that was given to it by the Secretary, and which the Secretary had endorsed as being relevant to its task, without the appellant knowing about the information or having any ability to comment on it. The Authority did not refer to the material in its reasons, still less put the material to one side. Their Honours at [100] referred to the information as having been hidden from the applicant. In these circumstances there was a risk that the information would lead the Authority to have a bias against the referred applicant, possibly by thinking that the applicant was not a fit person to hold a visa or that the applicant would be a danger to the community. The risk was described by their Honours at [97] as being a risk of subconscious bias. In all these circumstances, their Honours held that the fair-minded lay observer might apprehend that the decision-maker might decide the case other than on its merits. Importantly, their Honours emphasised that their conclusion depended upon the facts of the case, adding at [101]-[102] –

101    This conclusion depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.

102    If circumstances like this arise, a decision-maker may need to invite an applicant to comment on adverse information to counteract the apprehension of bias. …

46    The other member of the majority, Edelman J, emphasised at [110]-[111] that the Authority had stated in a letter to the referred applicant that it would make a decision on the basis of the information provided by the Secretary, acknowledged in its reasons that it had considered all of the material provided to it, and did not, as a professional decision-maker, suggest that any of the irrelevant and prejudicial material had been disregarded. In these circumstances, Edelman J concluded that a fair-minded lay observer would apprehend, at the very least, that the Authority might have taken the material into account, either consciously or subconsciously.

47    CNY17 was applied by the Full Court (Bromberg, Davies and O’Bryan JJ) in FSG17, where the Secretary had included within the material given to the Authority documents evidencing that the referred applicant had been charged with an offence involving an allegation that the applicant had been in a sexual relationship with a girl under 16, who was a ward of the State, for a period of three years. One distinguishing feature of FSG17 was that the Authority identified the information, cogently explained why the information was irrelevant, and stated that it had disregarded the information. However, the Full Court held that the Authority’s conscious endeavour to disregard the information did not cure the reasonable apprehension of bias as the information, which related to sexual offending involving a vulnerable child, was of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the Authority to put the information out of its mind. The fact-sensitive nature of the decision in FSG17 is reinforced by the observations of the court at [44] –

In the context of a review under Pt 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. If the information is sufficiently prejudicial, and the person affected by the decision is not informed of the information or given an opportunity to respond to it, procedural fairness may require the individual decision-maker exposed to the information to recuse themselves. That will not be required in every case. But in our view, it was required in this case.

48    The principles discussed in CNY17 were applied to a decision of the Tribunal by the Full Court in CQZ15, to which I referred at [40] above. The litigation in CQZ15 had a protracted history, as explained by the Full Court in its reasons. A delegate of the Minister gave notification to the Tribunal under s 438 of the Migration Act of information in a “Job Details Report” which was a 15 page document, stating that the information had been disclosed to the Minister in confidence, and that it should not be disclosed to the applicant for review. The Full Court described the information as including references to the applicant being subject to an intervention order for “threatening, stalking, harassing a female minor”, as containing information that indicated that the visa applicant was a person of interest as a witness in a people smuggling investigation conducted by the Australian Federal Police, and as stating that there were “integrity concerns” about the applicant. The Tribunal did not disclose the information in the Job Details Report to the visa applicant, and made no reference to it in its statement of reasons for its decision: CQZ15 at [26]. However, the Full Court held that there was no objective basis for inferring that the Tribunal had regard, consciously or unconsciously, to the information in the Job Details Report in making its decision: CQZ15 at [82]. In these circumstances though, the Full Court held that where the visa applicant’s credit was in issue, a fair-minded lay observer might reasonably consider that the information was of a kind that might subconsciously have affected the Tribunal’s approach to its decision, notwithstanding that it was to be inferred that the Tribunal did not have regard to the information. The Full Court held that the fair-minded lay observer might well doubt that, having read the prejudicial information in the Job Details Report, the Tribunal would have been able to exclude it from its subconscious mind in assessing the character and credit of the applicant before it: CQZ15 at [118].

49    One important point that is emphasised by the reasons of the Full Court in CQZ15 is that an allegation of apprehended bias in a case such as the present is not concerned with whether in fact the Tribunal consciously or subconsciously took into account prejudicial and irrelevant information. Rather, the question is about imputed lay perception. As the court stated at [118] –

… a fair-minded lay observer might reasonably consider that the information was of a kind that might subconsciously have affected the Tribunal’s approach to the decision, notwithstanding that it consciously did not have regard to the information. The touchstone for apprehended bias is not the judicial observer but the experience of the reasonably informed and fair-minded lay observer, who might well doubt that, having read the prejudicial information in the Job Details Report, the Tribunal would have been able to exclude it from its subconscious mind in assessing the character and credit of the applicant before it.

50    There are some similarities between the procedure involving a reference to the Immigration Assessment Authority under Part 7AA of the Migration Act, and an application to the Tribunal to review a decision under Part 7 of the Act. There are two features to which I will draw attention. The first is that the definition of Part 7-reviewable decision in s 411(1) excludes a decision to refuse to grant a protection visa relying on the disqualifying criteria in ss 5H(2), s 36(1B) or (1C) or s 36(2C)(a) or (b) of the Act, which is separately reviewable under s 500(1)(c) of the Act, and that a decision by a delegate of the Minister to refuse a visa on character grounds in the exercise of discretion under s 501 is separately reviewable by the Tribunal under s 500(1)(b). Therefore, like the referral to the Authority considered in CNY17, character-related grounds do not form part of the basis for the review by the Tribunal. The second feature is that, in terms that are similar to s 473CB(1)(c) of the Act which relates to reviews by the Authority that was relevant to the outcome in CNY17, upon being notified of an application to the Tribunal for review of a Part 7-reviewable decision, s 418(3) of the Act requires the Secretary to give to the Registrar of the Tribunal “each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision”.

51    Otherwise, there are material differences between the procedure applying to a review by the Tribunal, and the basis on which the Authority reviews a decision. Those differences include the following. The obligation on the Tribunal under s 414 of the Act to review the delegate’s decision is not constrained in the way that a review by the Authority is undertaken pursuant to s 473DB, where the review may be undertaken by considering the review material provided to the Authority by the Secretary without interviewing the applicant, and without accepting or requesting new information except as provided for in s 473DC and s 473DF. An applicant before the Tribunal may provide a statutory declaration in relation to facts that the applicant wishes the Tribunal to consider, and may make written arguments: s 423. Generally, the Tribunal must invite the applicant to appear before the Tribunal and to give evidence: s 425(1). Subject to exceptions, under either s 424AA or s 424A the Tribunal is required to give an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review, whereas under s 473DE the corresponding obligation of the Authority relates only to “new information”. This limitation in s 473DE was relevant in CNY17, because none of the material given to the Authority by the Secretary would have been “new information” requiring any disclosure under s 473DE, thereby contributing to the perception that the information was “hidden”.

52    It is necessary to say more about s 424A(1) of the Migration Act, the text of which is as follows –

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

53    Section 424A was invoked by the Tribunal in this case by writing the letter to the appellant to which I referred at [10]-[13] above, which was relied on by counsel for the appellant as contributing to a reasonable apprehension of bias. Section 424A has as its object the provision of procedural fairness to an applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment upon it: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [50] (McHugh J). Section 424A(1)(a) depends upon the Tribunal forming an opinion that certain information would be (not which could be, or might be) the reason or a part of the reason, for affirming the decision that is under review: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 at [24]-[25] (French CJ, Heydon, Crennan, Kiefel and Bell JJ). The use of the future conditional tense “would be” in s 424A rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 (SZBYR) at [17] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), cited in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [9] (Gageler, Keane and Nettle JJ).

54    As with CNY17, in assessing the appellant’s claims of apprehended bias I attribute to the fair-minded lay observer knowledge of the nature of the Tribunal’s review function, the circumstances which led to the decision, and the context in which it was made, including key elements of the legislative scheme. I also take account of the fact that the fair-minded lay observer would understand that decision-making by the Tribunal “is a function of the real world” and that a decision-maker “must do the best on the material available after giving interested parties the right to be heard on the question”: Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 882; 39 FCR 458 at 469 (Hill J, Gummow J and O’Connor J agreeing).

55    I am not persuaded that the primary judge was in error in rejecting the appellant’s claim of apprehended bias. My conclusion is based upon the combination of the following considerations.

56    It follows from all of the judgments in CNY17 that the whole of the circumstances of the Tribunal’s review may be considered in determining whether the fair-minded lay observer might apprehend that the Tribunal might not bring an impartial mind to bear on the resolution of the review. It was material to the conclusions of Nettle and Gordon JJ that the impugned information in the possession of the Authority had not been disclosed to the visa applicant or referred to in the reasons of the delegate or the Authority: see [96]-[99]. Their Honours also stated that an apprehension of bias might be counteracted by inviting a visa applicant to comment on adverse information to counteract it: [102]. And it was material to the reasons of Edelman J that the Authority had not stated that the irrelevant and prejudicial material had been disregarded: [111], [141]. As for the minority, Kiefel CJ and Gageler J stated at [20] that –

The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises [citing Webb v The Queen at 55, 73-74]. Where the question arises for determination after the Authority has made a decision on a review, the totality of the circumstances includes the decision and the reasons that the Authority has given for the decision.

57    As to the information about the fingerprints, it is not clear from the primary judge’s reasons that this information was subject to an acceptance before his Honour that the information was irrelevant and prejudicial. That is because the fingerprinting information was not particularised in the amended originating application, and the primary judge did not consider it in determining the appellant’s claim of apprehended bias. It is open to think that information going to the appellant’s identity and his migration history might have been relevant to the reliability of the claims for protection that he advanced, and the first Tribunal identified in its s 424A letter that the fingerprinting information would be a reason or part of a reason for rejecting the appellant’s claims. The second Tribunal also referred to the fingerprinting information in its s 424A letter to the appellant. In the result, the Tribunal on the second occasion treated the information about the fingerprinting as not relevant to the appellant’s claims, and gave it no weight. While I have accepted the submission of counsel for the appellant that the parties had agreed that the information was prejudicial and irrelevant for reasons including that the submission was not disputed by counsel for the Minister, that acceptance does not answer the question in issue. For one thing, there are degrees of materiality and prejudice that may be taken into account in evaluating the question in issue, which is whether the fair-minded lay observer might reasonably have apprehended in the totality of the circumstances that there might have been a departure from the standard of independent decision-making, uninfluenced consciously or subconsciously by the extraneous considerations that were the subject of the parties’ submissions.

58    The impugned information was not hidden from the appellant. The fingerprinting information was disclosed by the first Tribunal to the appellant in a s 424A letter, and the appellant then denied any knowledge of it. The fingerprinting information was then disclosed by the second Tribunal in its s 424A letter, and the appellant again denied knowledge of the information, stating that it was “irrelevant and baseless”.

59    The fact that the appellant had convictions for family violence offences was disclosed by the appellant in his application for a protection visa in response to standard questions concerning criminal history that were in the form. It appears that the Tribunal raised the appellant’s convictions for family violence offences with him at the hearing, because the appellant referred to this in his response to the Tribunal’s s 424A letter. The fact of the appellant’s convictions in 2016 for family violence offences was an inescapable part of the narrative that was relevant to the appellant’s claims. That was because the occasion for the appellant’s application for a protection visa was, as the parties accepted in the proceeding below, the cancellation of the appellant’s then existing visa upon his criminal conviction, and the appellant’s delay in making his application and his reasons were permissible considerations in assessing the reliability of his claims for protection.

60    In CNY17 and FSG17, it might have been open to attribute to the fair-minded lay observer a real sense of disquiet about how or why the impugned information in those cases came to be provided to the Authority, which comprised reviewers engaged under the Public Service Act 1999 (Cth): Migration Act, s 473JE(1). However, no such sense arises in this case. There was no apparent anomaly in the Secretary providing the appellant’s visa application to the Tribunal pursuant to the obligation under s 418(3) of the Act. Further, I do not consider that the evidence supports any perception of irregularity in the Secretary providing the fingerprinting information to the Tribunal.

61    Although it is an accepted fact that the appellant’s convictions for family violence offences and the fingerprinting information were “irrelevant and prejudicial”, I do not consider the fact that the Tribunal raised them for comment on the premise that they would be a reason or part of the reason for affirming the delegate’s decision reasonably gave rise to an apprehension of bias having regard to all the circumstances. The requirement to give notice under s 424A is part of a decision-making process which is dynamic, and which contemplates that any view that the Tribunal takes at the time of sending the notice may be provisional only, and is subject to reconsideration by the Tribunal after receiving a response. It is a consequence of the inquisitorial process and the statutory obligations of procedural fairness that the Tribunal must articulate for comment views that might be flawed, or which might not be fully formed or final, including views that might later be put to one side. The fair-minded lay observer would take notice of the text of the Tribunal’s letter to which I referred at [10] above where the provisional nature of the views was identified. The fair-minded lay observer would reasonably understand that decision-making in the real world might involve the Tribunal, as it did in this case, changing its views between the time of the s 424A letter, and the time of its decision. This is an aspect of s 424A that was referred to in SZBYR at [17], namely that the operation of s 424A(1) is determined in advance and independently of the Tribunal’s reasoning on the review.

62    It is also important to bear in mind that the Tribunal member was a professional decision-maker, albeit not a judicial decision-maker. The law seeks to insulate some lay decision-makers, such as jurors, from certain irrelevant and prejudicial information. Even then, any injustice that might be caused by the reception of irrelevant and prejudicial information may be cured by directions to the jury: see, eg, Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; 54 CLR 200 at 211 (Latham CJ) and 217 (Dixon J). The fair-minded lay observer would view a professional decision-maker such as a member of the Tribunal differently to a lay decision-maker. Unlike a jury, where the trial judge rules on admissibility, a Tribunal member will be expected to be capable by reason of training and experience of separating the relevant from the irrelevant in coming to a decision. This is one attribute of a judicial decision-maker which, in the present circumstances, it is appropriate to ascribe to a member of the Tribunal and which distinguishes the professional decision-maker from the lay decision-maker. As the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [140] –

Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding.

63    In this respect, the position of the Tribunal is also different from that of the Authority, which is required to review the referred decision “by considering the review material provided to the Authority under section 473CB”: s 473DB(1).

64    That brings me to the prejudicial nature of the impugned information. I accept that the information was prejudicial, and that if brought into account was capable of influencing the Tribunal in its decision. This could not be controversial, because the Tribunal by its s 424A letter stated that the impugned information would be the reason or part of the reason for affirming the decision under review. The question becomes whether the information was so prejudicial that the fair-minded lay observer might think that the Tribunal might not disregard the information, notwithstanding its express statements in its reasons that it gave the information “no weight”. This is where it is necessary to bear in mind that the question whether a reasonable apprehension of bias exists is one that is largely factual, and that each case is different. It is therefore not always useful to compare the facts of one case with the facts of another except for the purpose of gaining a better understanding of the principles of law that are involved: see Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503 (Windeyer J). Subject to that qualification, I observe that in FSG17, the information that was provided by the Secretary to the Authority was extremely potent, because it included an allegation of sexual offending against a vulnerable child. As recognised by the Full Court in that case, some sexual crimes involving a vulnerable child have the potential to be so prejudicial that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind. In CQZ15, the information that was provided to the Tribunal included allegations about apprehended violence orders, and included in particular an unfavourable credit assessment of the visa applicant. As to CNY17, it is necessary to bear in mind that it was the combination of circumstances that gave rise to the reasonable apprehension of bias, not the least of which was the statutory framework in which the Authority operated, and not the mere fact that the Authority had been given irrelevant and prejudicial information.

65    In all the circumstances of this case, while crimes involving family violence may be extremely serious, I do not consider that the information about the appellant’s convictions was so potent that it could not, in the eyes of the fair-minded lay observer, be put to one side by the Tribunal. Further, unlike the circumstances in CNY17, for the reasons that I have given there was no apparent irregularity about the circumstances in which the Tribunal received the information that would contribute to a reasonable apprehension of bias by reason of the Tribunal’s possession of the information. And as I have explained, the fair-minded lay observer would accept that consistently with the object of s 424A, the Tribunal might express provisional views, as it did in the letter given to the appellant in this case, and might then change those views without the possible perception that subconsciously it might maintain or be influenced by those views. Indeed, there would be some level of incoherence with the statutory scheme if particulars of information disclosed to a visa applicant pursuant to an obligation of procedural fairness under s 424A would lead the fair-minded lay observer to think that the Tribunal could not thereafter change its mind about the relevance of the information. Having written to the appellant in this provisional way pursuant to s 424A, it follows that it was appropriate for the Tribunal to state in the reasons for its decision the fact and content of its s 424A letter, the content of the appellant’s response, and the process of reasoning the Tribunal undertook in determining that the information was irrelevant. To do so was in accordance with the Tribunal’s obligation under s 430 of the Act to give reasons for its decision, and did not contribute to a reasonable apprehension of bias.

66    For these reasons, there was no error by the primary judge in rejecting the appellant’s claim of apprehended bias. I turn now to the first ground of appeal.

Ground one – the appellant’s submissions

67    The appellant’s submissions centred on the following sentence in [35] of the Tribunal’s reasons, which the appellant characterised as a positive and unqualified finding –

I find that the lack of information found by the researcher indicates that Lakhwinder Singh, a Dainik Jagran journalist, was not mistreated by the police and did not file a case about this mistreatment.

68    Counsel for the appellant submitted that, consistently with s 430(1) of the Migration Act which required the Tribunal to set out the evidence or other material on which findings on any material questions of fact are based, the Tribunal in [35] identified “the lack of information found by the researcher” as the evidence relied on for the factual finding.

69    Counsel drew attention to the limitations of the searches undertaken as expressed in the researcher’s response. In relation to searches of court databases, counsel submitted that, at its highest, the researcher’s response indicated that an English language database of the District Court of Jalandhar did not return a result for a case with the name Lakhwinder Singh as the plaintiff or applicant in 2004 or 2005. Counsel submitted that this search did not account for the possibilities that the proceeding had been commenced in a different court, that Mr Singh’s name was translated differently to English in the court database, or that not every proceeding in the District Court of Jalandhar is recorded in the online English database. Counsel for the appellant submitted that there were discrepancies between what the appellant had told the Tribunal about the case and the search efforts of the researcher. One such discrepancy was that, whilst the researcher searched for proceedings with the name Lakhwinder Singh, the appellant had told the Tribunal “it was not a civil case”, and a criminal proceeding would not record the complainant’s name as a party. Another was that the appellant stated he was unsure what year the court hearing was, believing that it was 2005 and that he gave evidence for a second time in 2006, however, the search was only conducted for the years 2004 and 2005.

70    In relation to searches of media articles, counsel noted that English-language news databases were searched, but that Dainik Jargan is a Hindi-language newspaper. It was submitted that the two English-language articles from 2000 and 2001 located by the researcher made it plausible that similar events may have happened several years later.

71    Counsel for the appellant submitted that the Tribunal’s finding in [35] was a “positive and unqualified” finding that was central to the Tribunal’s decision, because it was relied on to draw conclusions which were dispositive of the review, namely that the appellant was not a witness to the mistreatment of Mr Singh, that he did not give evidence in a court case, and that his claims were not true. Counsel for the appellant submitted that the findings were irrational, or alternatively based upon no evidence.

Ground one – the Minister’s submissions

72    Counsel for the Minister advanced three reasons why the Tribunal’s statement at [35] identified by the appellant was not a positive and unqualified finding. First, use of the word “indicates”, which the Minister claimed to mean “points to”. Secondly, counsel relied on the statement in [36] of the Tribunal’s reasons about its “concerns above about the lack of detail the applicant was able to provide about the case”, as supporting the Tribunal’s finding that the appellant was not a witness to the alleged mistreatment and did not give evidence in a court case. Counsel submitted that this statement would have been otiose if the finding in [35] was a positive and unqualified finding. Thirdly, counsel relied on [45] of its reasons, where the Tribunal drew conclusions based upon non-satisfaction. Counsel submitted that, in those circumstances, the court should adopt a beneficial construction of the passage at [35], and hold that the Tribunal did little more than conclude that it was not satisfied on the evidence that any case involving Mr Singh occurred.

73    Counsel for the Minister submitted that, even if the impugned passage at [35] was a positive and unqualified finding as the appellant claimed, it was not irrational and did not extend well beyond the evidence. Rather, it was submitted that the finding was made on the evidence provided by the researcher, and that the Tribunal was cognisant of and noted the limitations of the researcher’s findings. Counsel for the Minister submitted that the Tribunal placed some weight on the lack of results in court records, but significantly more weight on the media searches. Accordingly, it was submitted that the rational premise underlying the Tribunal’s finding at [35] was that if the journalist had been mistreated by police, it would have been reported. The obverse position was that because the mistreatment was not reported, it did not occur.

74    Finally, counsel recounted that the threshold for establishing irrationality or illogicality is high, and submitted that that high threshold had not been met. In relation to the no evidence ground and by reference to Shop, Distributive and Allied Employees Association v National Retail Association and Another (No 2) [2012] FCA 480; 205 FCR 227 at [31] (Tracey J), counsel submitted that the researcher’s response was at least a skerrick of evidence upon which the Tribunal drew the inference.

Ground one – analysis

75    The ultimate conclusions of the Tribunal were that it was not satisfied for the purposes of s 36(2)(a) of the Migration Act that the appellant was a person in respect of whom Australia owed protection obligations, and that it was not satisfied for the purposes of s 36(2)(aa) of the Act that the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India, being the receiving country as found by the Tribunal. There were a number of findings of primary fact leading to those conclusions that I have summarised earlier in these reasons. One of the strands of the Tribunal’s reasoning was its reliance on the results of research undertaken by the Department involving searches of court records and media reports as a basis upon which to reject the appellant’s claims, and to find that they had been invented.

76    The assessment of evidence, findings of fact, and the question of satisfaction for the purposes of s 65 of the Migration Act were matters for the Tribunal to consider in the exercise of executive function conferred by s 414 of the Act. However, it is an incident of common law principles of statutory interpretation that it is an implied condition of the Tribunal’s statutory function that the review must be undertaken rationally and reasonably. A complementary implication is that the threshold of unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ), and [135] (Edelman J).

77    In the case of decisions of the Tribunal under s 414 of the Act, where the process of decision-making must be disclosed by a statement given under s 430 or s 430D of the Act, there may be a discernible breach of the duty to act rationally and reasonably if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact: see, Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 367 (Deane J), cited in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222 at [25] (Gleeson CJ). Consonant with the high threshold of unreasonableness, what must be established to show jurisdictional error on these grounds has been described as whether “the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38] (Gummow and Hayne JJ), cited in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [40] (Gummow A-CJ and Kiefel J, dissenting as to the result) and [102] (Crennan and Bell JJ). A requirement to act rationally “is allied as well to the principle that fact finding must be based on probative material, and one correlative of which is that a decision based upon no evidence displays jurisdictional error”: SZMDS at [124] (Crennan and Bell JJ).

78    Having regard to the high threshold required to demonstrate jurisdictional error, there must be more than emphatic disagreement by a court with the decision or the reasoning leading to it: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J). Thus the threshold for illogicality and irrationality was described by Crennan and Bell JJ in SZMDS as follows at [130] –

… “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

(Emphasis added.)

79    As to “no evidence” as an allied instance of jurisdictional error, judicial statements citing Aronson, Dyer and Groves that “no evidence” equates to there being “not a skerrick of evidence” reflect the implication of the high threshold that must be established before the court will hold that a decision is beyond power on the ground of absence of evidence or probative material. Anything less risks the court sliding into merits review. See, for instance, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ), citing Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 at [575] (Weinberg J), and see also Shop, Distributive and Allied Employees Association v National Retail Association (No 2) at [31] (Tracey J) cited at [74] above. As to the text, see Aronson, Groves and Weeks, Judicial Review of Administrative Action, 6th ed, (2017) at [4.600].

80    As I have recounted at [20] above, there were a number of strands to the Tribunal’s reasoning leading to its absence of satisfaction for the purposes of s 65 of the Migration Act that the criteria in s 36(2)(a) and (2)(aa) of the Act were engaged. These strands included what the Tribunal considered to be a lack of detail in the appellant’s evidence about the claimed court case involving the journalist, the appellant’s changing accounts concerning the period in which he claimed to be in hiding, and the delay in applying for a protection visa the claimed reasons for which the Tribunal did not accept. The failure of the researcher to identify by search a court case of the type described by the appellant involving the journalist was regarded by the Tribunal as having some relevance to the question whether such a case existed. The limitations to the information that was provided were referred to by the Tribunal at [33] of its written statement which I have extracted at [20(b)] above. Those limitations included the absence of a case number, a year, and a district as noted by the researcher. The submissions of counsel for the appellant pointed to another limitation, being that the search was evidently confined to civil cases on the assumption that the journalist would be named as a party to the proceeding when the Tribunal had referred to the appellant stating that the case was “not a civil case”. However, the Tribunal found at [26]-[27] and [36] that the appellant’s evidence lacked detail, and in other parts of its reasons the Tribunal recorded the appellant’s claim as relating to a journalist who brought a case against a policeman: see [1], [25] and [33] of the Tribunal’s written statement. Viewing the Tribunal’s reasons as a whole, this lack of detail is part of the context for the Tribunal’s acceptance at [33] and [34] that there were limitations to the information provided by the researcher. What was involved in evaluating the information provided by the researcher were questions of degree and weight. I do not accept that the Tribunal engaged in illogical or irrational reasoning in treating the results of the limited searches of court proceedings as having some relevance to the question whether it would accept the appellant’s claims, while acknowledging the limitations on the information.

81    The fact that the issues before the Tribunal involved questions of degree is demonstrated by the Tribunal giving the absence of media reporting of the claimed case involving the journalist more weight. A key matter that informed the Tribunal’s reasoning was that the researcher was able to find media reports about other journalists who had suffered mistreatment at the hands of police in earlier years, but nothing about the journalist to whom the appellant had referred. I do not accept that this involved irrational or illogical reasoning. The submission of counsel for the appellant that the searches evidently extended only to English language newspapers goes to weight, and not to anything approaching illogicality or irrationality in the dimension identified by Crennan and Bell JJ in SZMDS in the passage extracted at [78] above.

82    It follows that I also do not accept the appellant’s claim that the Tribunal’s finding at [35] of its statement of reasons, namely that the lack of information “indicates” that the journalist was not mistreated by the police and did not file a case about his mistreatment, was irrational or based upon no evidence. As I have mentioned, counsel for the appellant submitted that the impugned finding at [35] amounted to a “positive and unqualified” finding that these events did not occur. Fairly read, the Tribunal’s reasons at [35] mean what they say, namely that the absence of information “indicates”, that is, points to the fact, that the journalist was not mistreated and did not file a case. Having regard to the limitations on the information on which the Tribunal relied, it is not a fair reading of the Tribunal’s reasons at [35] to equate “indicates” with an unqualified finding as submitted on behalf of the appellant. This conclusion is reinforced by comparing the language of [35] with that in the following paragraph [36] which I have set out under [20(b)] above, where the Tribunal referred also to the concerns that it had about the lack of detail that the appellant had been able to provide, and expressed itself in terms of a finding that the appellant was not a witness to the mistreatment of the journalist and did not give evidence in a court case. This observation also deals with a submission of counsel for the appellant that the researcher’s report could not rationally sustain a finding that no mistreatment occurred. Counsel’s submission was premised on the researcher’s report providing the basis for the Tribunal’s conclusion, and appeared not to take account of the fact that the bases for the Tribunal’s conclusion were broader, extending to the concerns that it had about the absence of detail in the appellant’s account. As the primary judge stated at [74], “[i]t is clear that the researcher’s findings were not the sole basis for the Tribunal’s conclusion”.

83    It follows that there was no error by the primary judge in rejecting the appellant’s claim of jurisdictional error by reason of illogical or irrational findings or findings based on no evidence. I agree with the primary judge’s conclusion that upon a fair reading of the Tribunal’s reasons as a whole, it was open to the Tribunal to engage in the process of reasoning that it did and to make the findings it made on the material before it.

Conclusion

84    The appeal will be dismissed with costs.

Associate:

Dated:    5 April 2022