Federal Court of Australia

Doan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 71

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant will pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

ANDERSON J:

introduction

1    By notice of appeal dated 17 June 2022, the appellant appeals from the judgment of the Federal Circuit and Family Court (Division 2) (Primary Judgment) in proceeding MLG 498 of 2018. The primary judge dismissed an application for judicial review of a decision made by the second respondent (Tribunal) on 6 February 2018. The appellant applied to the Tribunal for review of a decision by a delegate of the first respondent (Minister) to refuse to grant her a Partner (Migrant) (Class BC) (subclass 100) visa (Visa). The Tribunal found that the appellant was no longer in a relationship with her sponsor, and did not meet the criteria for making a claim of family violence. In those circumstances, the Tribunal found that the appellant did not meet the criteria for the grant of the Visa.

2    By notice of appeal filed 22 June 2022, the appellant advances the following grounds of appeal:

(1)    The primary judge erred in not finding and ought to have found that the Tribunal failed to “invite” the appellant under s 360 of the Migration Act 1958 (Cth) (Act) or give the appellant a “meaningful hearing”.

(2)    Further or in the alternative, the primary judge erred in not finding and ought to have found that the Tribunal’s decision was affected by apprehended bias.

background

3    The appellant is a citizen of Vietnam. On 20 October 2014, while still resident in Vietnam, she made a combined application for the Visa as well as a Partner (Provisional) (subclass 309) visa (Provisional Visa). In her application, she nominated Mr Mark Joseph Hageman as her sponsor (sponsor).

4    On 13 August 2015, the appellant was granted the Provisional Visa. On 25 August 2015, she arrived in Australia.

5    On 26 November 2015, the sponsor informed the Department of Immigration and Border Protection (Department) by email that his relationship with the appellant had ceased and he wished to withdraw his sponsorship for the Provisional Visa.

6    By letter dated 30 November 2015, the Department invited the appellant to comment on information that the spousal relationship had ceased.

7    On 4 December 2015, the sponsor sent an email to the Department stating:

I want advice as my ex and her cousin are wanting me to lie to immigration to say we're still together apparently she was going to write a letter stating this, this is not true and I told them I don't want any part of it.

I'm sending you some messages my ex sent me last night offering me money if I change my mind.

8    The email attached what appears to be text messages between the appellant and the sponsor.

9    On 15 December 2015, the Department received a handwritten letter described as being from “Mark Hageman Joseph”, which stated (copied exactly):

I am still support my wife Thi Hoang Doan to be permanent resident Australia … I confirm that we are still going as husband and wife …

10    On 4 January 2016, the sponsor sent an email to the Department stating:

In the past I sent you info on my ex and you said in an email to update you so I just wanted to let you know that 23/12/15 my ex and cousins family came over demanding I do the right thing and lie to immigration and write a letter stating this even though the last one didn't work. I said I would look into it, just so I could get them out of the house. The next day I sent Hoang an email stating that her and her family need to leave me alone or out I will get an intervention order.

A few days had passed and I haven't heard a thing but on the 28/12/15 Hoang had come over when I was out, she had said she was moving back in and all her stuff was Un packed so when I found out I grabbed all her stuff and threw it on the front lawn. I couldn't get around to the house so I needed to call a mate to help me during this time she latched onto my dads arm and neck this is when I had to physically remove her from my house and get my mate to lock the door while I called the police. I now have a summons for an intervention order.

I don't know what Hoang plans are now but I just wanted to inform you on what has happened!

11    On 8 January 2016, the sponsor sent a further email to the Department in which he stated:

… my ex Hoang has got a intervention order against me and what she has written is straight out lies. So I’m just informing you that I will be contesting this in court and I will be seeking a lawyer.

12    By letter dated 21 January 2016, a migration agent provided several documents to the Department, including a statutory declaration that set out “Ms Thi Hoang Doan’s side of the story” and an application and summons for an intervention order.

13    By letter dated 25 January 2016, the Department requested further information from the appellant, being “Evidence of your relationship with your spouse”.

14    By email dated 17 February 2016, the sponsor informed the Department that there would be a court hearing on 26 April 2016 in respect of the intervention order sought against him, and referred to “proof against her intervention order against me”.

15    By letter dated 22 February 2016, the Department made a further request for more information from the appellant and requested that a response be provided 28 days after she was taken to have received the letter.

16    By letter received by the Department on 29 March 2016, the appellant’s representative provided further documents, including statements by the appellant and third parties about the relationship between the appellant and the sponsor.

17    On 7 December 2016, an officer of the Department made a note of a phone call from the appellant’s representative in which she informed the officer that the sponsor had passed away and that the appellant “will now submit non-judical [sic] evidence”.

18    On 30 December 2016, a delegate of the Minister refused to grant the Visa. Among other things, in reaching his decision, the delegate:

(a)    noted that, before assessing the appellant’s claims of family violence, he was required to consider whether the appellant would have been in a relationship with the sponsor, but for the fact the appellant had suffered family violence committed by the sponsor. In doing so, it was necessary for the delegate to consider whether the appellant was the spouse or de facto partner of the sponsor prior to the cessation of the purported relationship;

(b)    considered whether the appellant met the definition of “spouse” or “de facto partner” of the sponsor as defined in ss 5CB and 5F of the Act, by reference to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment of the relationship;

(c)    reached the following conclusion:

You claim to have suffered family violence allegedly perpetrated by your former sponsor, and have submitted evidence that you sought an intervention order. The department is aware that your application for the order was dismissed by the court after your sponsor passed away. The department is also aware that your sponsor took his own life due to your unsubstantiated allegations that you suffered family violence allegedly perpetrated by him. Based on my assessment of the prescribed matters discussed above, I am not satisfied that you were the spouse or de facto partner of the sponsor prior to the relationship ceasing and I am not satisfied that your relationship was one that was genuine and ongoing.

Accordingly, I am not satisfied that you were the spouse or de facto partner of your sponsor (as defined under sections 5F and 5CB of the Act, respectively) prior to the relationship ceasing. I therefore find that you do not satisfy subclause 100.22 l(4)(b) of the Regulations. Consequently, I am not required to consider your family violence claims further.

19    The delegate’s decision attached a copy of relevant legislation, including an extract of Division 1.5 of the Migration Regulations 1994 (Cth) (Regulations).

20    On 10 January 2017, the appellant applied to the Tribunal for review of the delegate’s decision. In her application, she indicated that she would be represented by Dr Tung-Bao Ngo (Dr Ngo) for the purposes of the review.

21    By letter dated 19 December 2017 sent to Dr Ngo, the Tribunal invited the appellant to attend a hearing before the Tribunal which was scheduled for 6 February 2018. The letter also stated: “We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 30 January 2018”.

22    The appellant did not provide any further documents to the Tribunal. On 6 February 2018, the appellant and Dr Ngo attended the hearing.

23    On the same day, the Tribunal affirmed the decision under review. In reaching its decision, the Tribunal:

(a)    noted that at the hearing that the appellant confirmed she was no longer in a relationship with the sponsor and claimed she was a victim of family violence, and that the appellant made no other claim that any of the other alternative criteria could be met which would result in the grant of the Visa;

(b)    set out the requirements of Div 1.5 of the Regulations, including that the appellant had to provide evidence in accordance with reg 1.24(b): Tribunal Reasons [5];

(c)    noted that the appellant had not provided evidence required by the legislation in order to make a valid claim: Tribunal Reasons [5];

(d)    noted that it had provided the appellant with an opportunity to provide appropriate evidence and the appellant had not done so: Tribunal Reasons [6];

(e)    noted that it had disclosed the existence of certificates issued under ss 375A and 376 to the appellant, and summarised the content of that information. In particular, in relation to information that was provided by the sponsor’s sister, the Tribunal noted that “as the matters put were relevant to the relationship, and not the claim of family violence per se, no adverse weight [h]as been assigned, as the Tribunal has given the appellant the benefit of the doubt”: Tribunal Reasons [7]; and

(f)    concluded that the appellant had not made a valid claim of suffering family violence, and, in those circumstances, determined to affirm the decision under review: Tribunal Reasons [8]-[10].

24    On 27 February 2018, the appellant applied to the Federal Circuit and Family Court of Australia for judicial review of the Tribunal’s decision.

25    At the final hearing on 29 March 2022, the appellant relied upon three grounds of judicial review, namely that:

(a)    the Tribunal denied the appellant a meaningful opportunity to give evidence in relation to the issue of whether she had presented the requisite evidence to establish a claim of judicially determined or non-judicially determined family violence (Ground 3 below);

(b)    the Tribunal’s failure to adjourn the making of a decision on the review were legally unreasonable in the circumstances (Ground 4 below); and

(c)    the Tribunal’s decision was affected by reasonable apprehension of bias (Ground 5 below).

26    The evidence in the Court below consisted of the Court Book, an unsworn affidavit of the appellant, an affidavit of the appellant’s then solicitor (annexing a transcript of the Tribunal hearing and Ministerial Instrument IMMI 12/116 dated 22 November 2012 which specifies the types of evidence that are required together with the number of items of evidence which are required for the purposes of para 1.24(b)) and an affidavit of a solicitor for the Minister (annexing correspondence from the sponsor’s sister the subject of a s 376 certificate).

27    On 25 May 2022, the primary judge dismissed the amended application with costs.

28    In relation to Ground 3 below, the primary judge held that, although the absence of evidence required under reg 1.24(b) had not been a dispositive issue in the delegate’s decision, the appellant was “on notice” that she needed to prove her claim of family violence in one of the ways required under the Regulations because:

(a)    at Primary Judgment [21], the delegate had stated that he was “not required to consider [the appellant’s] family violence claims further” and thus was saying that, even if the Tribunal had been satisfied the appellant was in a genuine spousal relationship with the sponsor, she would still have needed to prove her family violence claim in one of the ways required under the Regulations; and

(b)    at Primary Judgment [23], the terms of the Regulations “clearly required family violence to be proved in specified ways”.

29    In relation to Ground 4, the primary judge held that the Tribunal had not acted unreasonably because (at Primary Judgment [33]-[40]) the Regulations had put the appellant on notice of the matters she had to prove, the appellant did not ask for an adjournment, and the appellant had been given the opportunity to provide such evidence if she so wished.

30    In relation to Ground 5, the primary judge held:

(a)    that the delegate had disclosed to the appellant the information that the sponsor had taken his own life and therefore there was no apprehended bias because she had the chance to respond to it: Primary Judgment [46]; and

(b)    that the information that the sponsor had taken out an intervention order against the appellant was not disclosed to the appellant but “whether the Tribunal was biased or not could not have affected the outcome of the matter”: Primary Judgment [49].

Appeal to the Federal Court of Australia

Appeal Ground One – meaningful opportunity to give evidence

31    Section 360(1) of the Act relevantly provides that:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

32    The appellant relies upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [34]-[37] where the High Court held that s 425 of the Act (which is analogous to s 360 of the Act) required the Tribunal to specifically identify the issues that were dispositive of the review and invite the appellant to give evidence and make submissions on those issues. What the “issues arising in relation to the decision under review” are can be determined by reference to the issues which had been decided differently by the delegate.

33    The appellant submits that the delegate in this case, refused to grant the appellant a permanent partner visa because the delegate was not satisfied the appellant has been in a genuine spousal relationship with the sponsor; however, the appellant submits that the Tribunal’s decision was based on the appellant not having presented sufficient evidence to establish a non-judicially determined claim of family violence. The appellant submitted in the Court below that the Tribunal denied the appellant a meaningful opportunity to present evidence because it did not put the appellant on notice of the issue upon which it ultimately decided the case. In the appellant’s submission, the Tribunal did not direct the appellant’s attention to the issue of the lack of documentation specified in Schedule 1 of the Ministerial Instrument IMMI 12/116.

34    The appellant submits that the primary judge found, at Primary Judgment [17]-[21], that the appellant was on notice of the lack of documentation because the delegate had said they were “not required to consider [her] family violence claims further” and had therefore made clear that she still needed to “prove her claim of family violence”. However, in the appellant’s submission, saying an issue is not required to be considered is not saying that it needed to be proved; and it certainly does not amount to saying that the issue “may be important to the decision and may be open to doubt”: SZBEL at [47], More importantly, the appellant submits that the obligation under s 360 of the Act to “invite” is not about what things have to be proved but rather which of those things may be in doubt: SZBEL at [36]-[40].

35    The appellant submits that the primary judge was wrong to rely on Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J (as her Honour then was) in making her Honour’s findings at [22] and [23] of the Primary Judgment.

36    In SZGUR at [9], their Honours found that:

procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power

…

the terms of the statutory power, being the Regulations, clearly required family violence to be proved in specified ways.

37    The appellant submits that the above passage from SZGUR, which is set out in the Primary Judgment, was not an exhaustive statement of the common law, as the following sentence from the judgment of French CJ and Kiefel J in SZGUR at [9] was that:

the decision-maker must also advise of any adverse conclusion which will not obviously be open on the main material.

38    In any event, the appellant submits that it was not, in fact, apparent from the terms of the Act nor the Regulations what documents the appellant was missing; for this, the appellant had to have seen the schedule to the Ministerial Instrument IMMI 12/116.

39    The appellant also argued before the primary judge that the Tribunal had said that it would “ensure” that the documentation was there for a valid claim. The appellant relies upon the Transcript of the Tribunal hearing at AB 251, lines 19-31, where the Tribunal said:

Tribunal:     The claim you're making is that you've suffered family violence. Correct?

Interpreter:     Yes

Tribunal:     Okay, so the way that works is the tribunal will have regard to your claim, the tribunal will ensure that the documentation is there for a valid claim.

40    In the appellant’s submission, the Tribunal was indicating that, as a preliminary matter, it would “ensure that the documentation is there”, so that it could “have regard to [the appellant’s] claim”. In the appellant’s submission, it could reasonably be perceived that the Tribunal was saying it would undertake a preliminary assessment of whether “the documentation is there for a valid claim” so that the appellant could then take the necessary steps to present the required evidence and allow the appellant’s claim to be considered by the Tribunal. The appellant submits, that as a consequence, the appellant did not seek an adjournment to undertake that assessment for herself. The appellant submits that in this way, the Tribunal’s course of action in issuing its decision an hour later without having regard to the appellant’s claim was a breach of s 360 of the Act, akin to that identified by Justice Ryan in Applicant VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804; (2002) 121 FCR 100 at [62].

41    The primary judge in her reasons at [26] found that the Tribunal was “was simply explaining what it would do, in accordance with the Regulations”. The appellant submits that this was precisely the problem: the Tribunal was saying that it would “ensure that the documentation is there” so that it could “have regard to [the appellant’s] claim” in accordance with the Regulations, and thereby induced the appellant into not seeking to provide, or seeking an adjournment if necessary to provide, the necessary documentation. The appellant submits that the Tribunal, in making its decision an hour later without doing what it said it would do, denied the appellant the opportunity to provide the required evidence and the possibility of a favourable outcome.

Consideration of Appeal Ground 1

42    The appellant, by Ground 1, submits that the primary judge erred in not finding that the Tribunal failed to “invite” the appellant to a “meaningful hearing”. For the reasons that follow, the primary judge made no such error, and the Tribunal did not fail to invite the appellant to a hearing consistent with its obligations under s 360 of the Act.

43    To make out her claim for the Visa, the appellant was required to show:

(a)    that she had been the spouse or de facto partner of the sponsor prior to the purported relationship having ceased: Regulation Schedule 2 cl 100.211(4)(b); and

(b)    that she had suffered family violence committed by the sponsor: Regulation Schedule 2 cl 100.211(4)(c).

44    Making out item (b) required compliance with reg 1.25 of the Regulations, which in turn required the appellant to provide a statutory declaration and further evidence specified in Ministerial Instrument IMMI 12/116.

45    The delegate resolved the matter by finding that the appellant did not meet the requirements of item (a) above. The delegate found it was unnecessary to consider item (b) and the delegate made no decision about whether the appellant had suffered family violence. The delegate, in his decision at AB 90, described the family violence allegation as “unsubstantiated” and made clear that he did not consider that matter further.

46    There is nothing in the delegate’s decision to indicate that the question of family violence had been resolved, or that the only “issue arising” on review was whether the appellant had been in a spousal relationship with the sponsor. Rather, the delegate identified two “issues”. First, whether a relationship arose, and second, whether there had been family violence, both of which needed to be addressed in order for the Visa to be granted. On a fair reading of the delegate’s decision, it is clear that the obstacles facing the appellant on review would be the need to satisfy a decision-maker that there had been a spousal relationship, and that the requirements of cl 100.211(4)(c) of the Regulations were met in relation to what the delegate described as her “unsubstantiated” allegation of family violence. The delegate’s decision annexed the relevant regulations [AB 191]. As a consequence, the appellant was on notice that the need to meet the requirements of reg 1.25 and Ministerial Instrument IMMI 12/116remained in issue.

47    Furthermore, as the primary judge explained in her reasons at [22]-[23], the Tribunal had no obligation to identify as an “issue” that the appellant had to comply with legislation. The High Court has made clear in SZBEL at [29], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, that the obligation on a decision-maker is to “identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.” Similarly, in SZGUR at [9], the High Court explained that procedural fairness “requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power”. In this case, the statutory requirements (which was annexed to the delegate’s decision) required the appellant to provide certain documents in order to make out her claim of family violence. There is no basis to conclude that the Tribunal erred because it “did not put the appellant on notice of the issue upon which it ultimately decided the case”. The Tribunal decided the case on the basis that the appellant had failed to provide the documents required by the statute.

48    The appellant relies upon the Tribunal’s use of the word “ensure” during the hearing in the passage of the Transcript quoted in the appellant’s outline of submissions at [29]. This reliance misconceives the effect of what the Tribunal said when the Transcript is read in context and as a whole. The exchange referred to by the appellant, at lines 19-31 at AB 251 of the Transcript, must be read in light of lines 35-45 on the same page of the Transcript, where the Tribunal said the following:

The legislation requires certain documents in certain forms. If the documents are not there, then I cannot consider the claim further and I’ll affirm the decision. If a valid claim has been made, the tribunal will go on to consider the claim.

49    Properly understood in context, the reference to “ensure” at line 25 of the Transcript was a reference to the Tribunal satisfying itself that a valid claim had been made. As the primary judge found, the Tribunal “was simply explaining what it would do, in accordance with the Regulations”. The Tribunal was not undertaking to provide advice that an invalid claim had been made. That is not the Tribunal’s role. Rather, as the Tribunal said itself during the hearing, it would affirm the decision “[i]f the documents are not there”. That is what the Tribunal did.

50    Ground 1 does not disclose any appellable error and must be dismissed.

Appeal Ground 2 - reasonable apprehension of bias

51    The appellant submits that the well-established test for apprehended bias is whether "a fair-minded lay observer might reasonably apprehend that the [Tribunal] might not bring an impartial mind to the resolution of the question the [Tribunal] is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].

52    The appellant relies upon the observations of the High Court in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17) where the High Court held that the provision by the department of irrelevant, but prejudicial, material to the Immigration Assessment Authority without notice to the appellant, gave rise to a reasonable apprehension that it had consciously or subconsciously deviated from deciding the case on its merits. In that case, the Secretary of the Minister’s department had referred irrelevant and prejudicial material to the Immigration Assessment Authority for the purposes of a review under Part 7AA of the Act, which required the Authority to have regard to that material. Nettle and Gordon JJ said at [100]:

… [A] fair-minded lay observer might apprehend a lack of impartiality on the part of the IAA where: (i) material has been designated as "relevant" by the Secretary; (ii) the IAA must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant. A fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account. In those circumstances, the fair-minded lay observer might apprehend that the decision-maker might decide the case other than on its merits.

53    The appellant submits that in the Court below, it was argued before the primary judge that the provision of prejudicial information covered by the s 376 notification, namely the communications from the sponsor’s sister, gave rise to a reasonable apprehension of bias. The appellant submits that although the High Court was concerned in CNY17 with a different part of the Act, the reasoning applies by analogy to the present case:

(a)    the documents containing the communications from the sponsor’s sister had either been designated relevant by the Secretary and referred to the Tribunal under subsection 352(4) or considered relevant and “gotten” by the Tribunal under subsection 359(1) of the Act;

(b)    the Tribunal was required, under subsection 359(1), to have regard to information it “gets” under that subsection and, in any case, the Tribunal said at the hearing that it had in fact had regard to the communications from the sponsor’s sister;

(c)    the communications were prejudicial. The sponsor’s sister said amongst other things that the sponsor committed suicide due to the appellant’s allegations of family violence and that the sponsor had taken out an intervention order against the appellant to keep her away from his father and his father’s house; and

(d)    the communications were hidden from the appellant. The documents were never provided to the appellant and not all of the allegations were disclosed in the delegate’s decision record and by the Tribunal at the hearing.

54    The appellant submits that the primary judge in her reasons at [49] held that whether the Tribunal was biased or not was not material because the appellant had not sought an adjournment and could not have succeeded without the requisite evidence. The appellant submits, however, that the Tribunal’s conduct of the review included its conduct of the hearing and its exercise of discretion not to adjourn. In the case of the former, it had been submitted that the Tribunal’s statement that it would “ensure that the documentation is there for a valid claim” so that it “will have regard to your claim” induced the appellant into not seeking to provide further evidence and if necessary seeking an adjournment. In the case of the latter, the appellant submits that the discretion to adjourn arose irrespective of whether the appellant had sought an adjournment.

55    The appellant submits that the circumstances of the present case gave rise to a reasonable apprehension in a fair-minded lay observer that the Tribunal might not bring an impartial mind to the resolution of the question it was required to decide.

Consideration of Appeal Ground 2

56    The test for apprehended bias is not in dispute between the parties. In administrative decision-making the test is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind – that is, a mind “so committed to a conclusion already formed as to be incapable of alteration, whatever the evidence or arguments may be presented” to the resolution of the question that the decision-maker must decide: Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 at [23] and CNY17 at [17]-[18], [69]-[70], [131]-[132].

57    A finding of apprehended bias is not to be reached lightly: CNY17 at [76], citing Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. The test is objective. The hypothetical fair-minded lay observer is presumed to have an appropriate level of knowledge to be able to make a reasonably informed assessment of the likelihood of apprehended bias. This knowledge includes:

(a)    the relevant legal framework (here, the procedures governing the Tribunal’s decision-making under Part 5 of the Act, and the applicable criteria for the Visa, including reg 1.25 and the Instrument);

(b)    the identity of the decision-maker;

(c)    the nature of the decision and issues in question; and

(d)    the relevant facts and circumstances leading to the decision (including the impugned conduct): CNY17 at [58]; Isbester v Knox City Council (2015) 255 CLR 135 (Isbester) at [20]-[23]; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [70] and [134]; Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 at [13]-[17].

58    In making a claim for apprehended bias, an applicant must first state precisely what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits: CNY17 at [58].

59    In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four categories of apprehended bias: disqualification due to an interest in the proceeding, disqualification by conduct, disqualification by association, and disqualification by extraneous information.

60    Where apprehended bias is alleged, as in this case, on the basis of extraneous information, it is necessary for the Court to examine all the circumstances of the case to determine if the information was so “potent” that it might lead a fair-minded lay observer to apprehend a lack of impartiality: CNY17 at [101]; FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 (FSG17) at [41]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2020) 284 FCR 455 (CQZ15) at [100]; BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 328 at [64]-[65].

61    Further, the fact the material is “extraneous” or “irrelevant” or “inadmissible” is key to establishing what it is that might lead a decision-maker to decide the case other than on its legal and factual merits. If the material is properly before the decision-maker, and is not irrelevant or extraneous, there can be no reasonable apprehension that advertence to the material might cause a departure from the required standard of decision-making.

62    The appellant submits that the “communications from the sponsor’s sister” referred to in the Primary Judgment at [47] constitute the material alleged to give rise to an apprehension of bias.

63    This ground of appeal faces two difficulties. The first is that the communications were not extraneous or irrelevant to the review. They were directly relevant to the question before the Tribunal of whether the appellant had been in a spousal relationship with the sponsor. The Tribunal said as much in its reasons at [7]. In the absence of extraneous or irrelevant material, the appellant cannot succeed on this ground.

64    The second difficulty with this ground is that the provision of the prejudicial information could not give rise to an apprehension of bias because the prejudicial material did not go to the Tribunal’s ultimate conclusion (which was determined on the appellant’s objective failure to comply with legislative requirements). The fair-minded lay observer, who is taken to be familiar with the relevant legislation, would not consider that the prejudicial information could have influenced the Tribunal subconsciously in this case. The observer is taken to know that the Tribunal could not make a decision favourable to the appellant without her providing the documents required by reg 1.25. The prospect of the Tribunal using its theoretical ability to adjourn the review of its own volition, in the absence of a request to do so from the appellant (who was represented throughout, and had been told the legislative requirements), is not realistic.

65    There are further reasons why the second ground of appeal must be rejected.

66    First, unlike in CNY17 and cases such as CQZ15, the relevant information contained in the sponsor’s sister’s letter (with one minor exception) was put to the appellant. As the primary judge found, relying on the Transcript at AB 252 line 21 to AB 254 line 45, and the Tribunal’s decision at [7], the substance of the material was put to the appellant and she provided a detailed response.

67    The only aspect that was not put to the appellant was that the sponsor had taken out an intervention order. That objectively minor matter, in the scheme of the allegations contained in the material, is not sufficient, in my view, to give rise to an apprehension of bias in the circumstances of this case.

68    Second, the Tribunal expressly said that it gave the information no weight, and gave the appellant “the benefit of the doubt” in its decision at [7].

69    Third, this was not a situation where the material constituted “a very large part of the material provided to the [Tribunal]”: CNY17 at [111]. The information concerned one issue among many.

70    For the reasons given, ground of appeal 2 does not disclose any appellable error and must be dismissed.

disposition

71    The appeal will be dismissed with costs.

Associate:

Dated:    13 February 2023