ALO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 228
•10 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ALO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 228
File number(s): MLG 355 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 10 February 2021 Catchwords: CITIZENSHIP AND MIGRATION – migration – appeal from decision of tribunal – protection visa – whether failed to consider integer – whether misapprehended or misapplied test – apprehended bias – dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5(1), 36(1C), 411(1)(c), 473DB(1), 500(4)(c), 501 Cases cited: AAL19 v Minister for Home Affairs [2020] FCAFC 114
Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497
Number of paragraphs: 46 Date of last submission/s: 12 November 2020 Date of hearing: 12 November 2020 Place: Brisbane Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Solicitor for the Respondents: Mills Oakley Solicitor for the Respondents: Mr Yuile ORDERS
MLG 355 of 2019 BETWEEN: ALO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
10 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The amended application filed on 16 October, 2020 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental fixed in the sum of $7,467.00.
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant seeks judicial review of a decision made by the second respondent. This decision affirmed a previous decision of a delegate of the first respondent. That previous decision was to refuse the applicant a Protection visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
The applicant presses three grounds of review. For the reasons that follow the application must be dismissed.
BACKGROUND
The applicant is a 56-year-old citizen of Pakistan. He is an Ahmadi (or Ahmadiyya) Muslim. The applicant was born into a landowning family in Punjab province though, due to anti-Ahmadi attacks directed at his parents, the family relocated to Sindh province when the applicant was young. His family had purchased businesses and farming properties in that region and had made a successful living in Golarchi. After the move, the applicant lived in the town of Golarchi in Sindh province with his wife and six children until his travel to Australia in 2017.
The applicant was granted a Visitor (subclass 600) Visa on 6 October, 2017 and arrived in Australia on 23 October, 2017. Soon thereafter, the applicant applied for a Protection (Class XA) visa. The Applicant claimed to hold a well-founded fear that he would be subjected to serious harm and persecution should he be forced to return to Pakistan by reason, chiefly, of claimed religious discrimination against the Ahmadi community. He claimed to fear harm including death, assault, harassment and discrimination on account of his religion. He described incidents in which rubbish had been dumped in front of the family home, the walls of the home had been graffitied with slurs such as ‘kafir’ (infidel) or threats of death. He said that crowds would gather in front of the home to chant and throw stones. However, he also said that at times he had not faced significant problems due to his faith. For periods he and his family had been left alone, though societal discrimination had continued.
The applicant identified what he said was official and state-sanctioned discrimination against Ahmadis, including the prohibition on Ahmadis identifying as Muslim, enshrined in the Constitution of Pakistan. He identified this discrimination as a source of persecution.
The applicant’s Protection Visa application was refused by the first respondent on 17 July, 2018. He sought review of that decision by the second respondent. The second respondent held a hearing with the applicant and his representatives on 1 November, 2018 and made the decision in respect of which the present application is brought, on 29 January, 2019.
APPLICATION FOR REVIEW
In his amended application filed on 16 October, 2020 the applicant specifies three grounds of review. I will deal with each in turn.
Ground One - The Tribunal failed to have regard to an integer of the applicant’s claims as related to the denial of his right to vote
It may be accepted and it is conceded by the first respondent that the second respondent must consider the case that arises from the evidence before it, regardless of how that case is specifically put by the applicant. It is bound to consider a case on a basis not articulated by the applicant if it is raised by the evidentiary material that is before it: see, for example, MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [38]. However, an administrative decision-maker need not make a finding on every single claim, and findings on specific matters may be subsumed within broader findings of greater generality: Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].
In support of his application for review by the second respondent, the applicant, by his migration agent, prepared and gave to the second respondent a written submission. The written submission sets out the applicant’s claims and the material upon which he relied for those claims together with an analysis of the delegate’s decision.
At page 9 of the written submissions, the applicant’s representative submitted that the first respondent’s delegate erred in determining that there was a low “overall risk” to the applicant and his family from religious based violence. A submission was advanced that country information and local reports “would have inclined the case officer to the contrary, had she engaged in more diligent research”. It was pointed out that the first respondent’s delegate had determined or accepted that Ahmadis in Pakistan faced a high level of discrimination which affected their ability to practise their religion freely and limited the extent of their political engagement. It was submitted that the first respondent’s delegate noted Ahmadis were required to register to vote on a separate Ahmadi-specific list which specifies that they are non-Muslim.
Relevant to this ground of review, the written submissions (at page 14) also referred to a report released by the Ahmadi community that highlighted impediments blocking Ahmadis from voting in general elections. The applicant’s representative also provided a number of reports to the second respondent which addressed the disenfranchisement of Ahmadis.
Apart from the material referred to by the applicant’s representatives in the written submissions, there was also material sourced by the second respondent which confirmed that Ahmadis were disenfranchised. As the applicant now submits, there was a report of the Department of Foreign Affairs and Trade issued in September, 2017 which set out information about the disenfranchisement of Ahmadis. It reported that Ahmadis were excluded from the common franchise in Pakistan and, as mentioned, that they were required to register on a separate list for non-Muslims. It was reported that if they failed to do so they would be denied the right to vote.
The second respondent was alive to the applicant’s claim that he would be subjected to official or state sanctioned discrimination by reason of his religion. It referred extensively to material before it which established that discrimination. In particular, it referred to the DFAT report of September, 2017 which, amongst other passages, had recorded the following:
3.79 Ahmadis face high levels of official discrimination in Pakistan. Ahmadis are required to register to vote on a separate Ahmadi-specific list, which specifies that they are non-Muslim. Non-Muslim groups such as Christians, do not face such restrictions. In the lead-up to the 2013 elections many Ahmadis refused to register as non-Muslims on this list, and were therefore unable to vote. Applications for official documentation such as passports and national identity cards must contain information about religious affiliation (recorded on passport documentation). People who identify as Muslim have to explicitly denounce Ghulam Ahmad as a false prophet and Ahmadiyya followers as non-Muslims.
The second respondent quoted at length from the Asylum Research Centre Pakistan Country Report dated 18 June, 2018 which referred to the UN Human Rights Committee’s August 2017 report, and the concluding observations therein. Those concluding observations were to this effect:
While noting the adoption of quotas for women and minority persons in the national and provincial parliaments and in public services and quotas for persons with disabilities in public services, the Committee is concerned that the minority quota is applied only to religious minorities, and regrets the absence of sufficient information on the implementation of these quotas. It is also concerned by the removal of Ahmadis from the general electoral list and their registration on a separate voting list, the low level of exercise of the right to vote by women and remaining obstacles to effective access to voting for persons with disabilities and persons belonging to minorities, including gypsies (arts. 2, 25, 26 and 27).
The applicant did not advance a case that the impediments to him voting or participating in elections was, of itself, serious harm. His case was put in the context of it being an example of the discrimination faced by Ahmadis in Pakistan. Other examples were given by the applicant in his submissions to the second respondent including difficulties with employment, education, access to mosques and “every other aspect of life”. It was submitted that he would not be allowed to practice his religion without being arrested or persecuted because of the institutional and societal discrimination faced by him by reason of his being an adherent.
At [31] of its reasons for decision, the second respondent recorded its acceptance that Ahmadis faced “ongoing moderate to high levels of official and societal discrimination”. At [32] the second respondent said:
32. In relation to the risk of discrimination on the basis of faith, I accept that there is a high risk of an Ahmadi in Pakistan facing a moderate to high level of officially tolerated discrimination and vilification from both the government and society. I consider that the level of discrimination faced depends on factors such as location, establishment within communities and the social and financial status of individual Ahmadis.
Further, at [33] – [34] of its reasons, that the second respondent said (emphasis added):
33. The applicant fears that he will be killed, attacked, harassed and discriminated against by Anti-Ahmadi extremists and agents of the state (Government or police) if he returns to Pakistan. In relation to the discrimination and vilification, I do note the country information about the extent of state sanctioned discrimination against the Ahmadi community and entrenched country wide anti-Ahmadi sentiment and the potential for that to have a negative impact on Ahmadi’s capacity to subsist, and consider that, at its’ worst - (discrimination which restricts his capacity to find employment, practice his faith or contribute within his society) the harm the applicant fears, if experienced at that level, would constitute ‘serious harm’. I find that the harms that the applicant claims to fear (being killed and physically attacked, facing high level discrimination and vilification) each constitute serious harm. I find that the persecution feared by the applicant involves serious harm as required by s.5J(4).
34. The applicant fears being harmed because of his religion. I find that religion is the essential and significant reason for the persecution feared, and is therefore one of the reasons given in s.5J(1)(a).
The reference in [33] to discrimination which restricts his capacity to contribute within his society demonstrates, in my view, a consideration of the effects of discrimination upon the applicant. This includes his right to participate in voting or elections.
The second respondent accepted that the applicant would be subjected to official state sanctioned discrimination which necessarily included restrictions on his right to vote. The restrictions on his right to vote was one aspect of the state-sanctioned discrimination arising from his religious beliefs about which the applicant complained. That he would be subjected to that discrimination was accepted by the second respondent. As the first respondent submits, the aspect of that discrimination connected with voting was described in such a way that it was subsumed within the second respondent’s overarching acceptance of “state sanctioned discrimination against the Ahmadi community” and the second respondent’s acceptance that such discrimination – and its effect on the applicant’s faith or contribution to society – could amount to serious harm.
Further, as the first respondent submits, the second respondent’s decision turned on whether any serious harm, of this or another kind, was objectively well-founded. That broader or more general consideration included the question of restrictions on Ahmadis voting. The second respondent concluded, after considering the applicant’s circumstances, that notwithstanding the kinds of discrimination identified by the applicant and revealed by the information to which the second respondent referred, the second respondent did not accept that any fear of those matters held by the applicant was well-founded. That finding was, in my view, open to the second respondent on the material before it.
Considering the applicant’s circumstances in particular, the second respondent noted that the applicant and his family had in the past been the subject of some discrimination (at [37]). However, this had not prevented the applicant and his family in their region living “a relatively prosperous life” where the level of discrimination had “not impeded his capacity to succeed” (at [39]). Importantly, the second respondent also did not accept that the applicant “fears being or has ever been prevented from practising his faith or that he has ever been arrested or persecuted by the government or agents of the State because of his faith” (at [39]).
In my view, the second respondent’s reasons demonstrate that it considered the official or state sanctioned discrimination that was recorded in the country information and made findings on it both generally and in respect of the applicant specifically. The decision did not expressly mention voting as a part of that consideration, but the broader consideration of the topic by the second respondent is properly read as including the more specific examples of discrimination such as voting. It is well established that an administrative decision-maker need not make a finding on every single claim, and that findings on claims may be subsumed within broader findings.
In this case the second respondent accepted that there was the kind of discrimination mentioned in the country information. However, the second respondent did not accept that any fear of those matters held by the applicant and in his particular circumstances was well-founded. Those findings were open to the second respondent
In my view, this ground reveals no jurisdictional error.
Ground Two - The Tribunal misapprehended or misapplied the test in relation to complementary protection
This ground deals with the applicant’s claim to complementary protection.
At [57] of its reasons for decision, the second respondent said (emphasis added):
I refer to my findings above in considering the real chance test. I am not satisfied that the applicant has established that there is a real risk that he will arbitrarily deprived of his life as a necessary and foreseeable consequence of him being returned to Pakistan. I have found that the applicant has established that he has experienced and would continue to face some entrenched discrimination, harassment and societal vilification if he was to return to Pakistan. However, as noted above, in the particular circumstances of this applicant’s long term and accepted experience in Golarchi, I consider that the level of discrimination, harassment and vilification he has faced and would be likely to face if he returns to his home is moderate, in the form of some social discrimination, harassment and vilification and sporadic incidents of hate speech and abusive writing on external walls of the home. I have considered the applicant’s evidence and my findings, and I do not consider that the level of discrimination, harassment and vilification which he will encounter in the future is properly considered as causing and intending to cause the applicant ‘severe’ pain or suffering, whether physical or mental, that will be intentionally inflicted on the applicant, or that they are at a level such that they cause extreme humiliation. I acknowledge that the applicant’s experiences of discrimination, vilification and harassment have caused and will cause the applicant some mental and physical distress and humiliation. I consider that the moderate discrimination, harassment and vilification faces by the applicant if he is returned to Pakistan would be at a level which he has faced throughout his life, and despite which he has prospered. Bearing in mind his own evidence, and taking into account his physical location in Pakistan, his established standing within his community and his lifetime experience, I am not satisfied that the level of pain or suffering the applicant will face (as he has in the past) is at a level which could be regarded as cruel or inhuman in nature, or as cruel or inhuman or degrading treatment or punishment causing or intending to cause severe pain or suffering or extreme humiliation, even when considered cumulatively.
The applicant submitted that the second respondent misunderstood the definition of cruel or inhuman treatment or punishment. He submitted that, in the passage extracted above, the second respondent clearly limited its consideration to instances of severe pain and suffering. He submitted that the definition of cruel or inhuman treatment or punishment at s.5(1) of the Migration Act 1958 (Cth) includes pain or suffering, whether physical or mental, intentionally inflicted on a person. Pain or suffering is included in the definition, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The applicant argues that the second respondent limited its consideration of the material before it to whether the applicant would experience severe pain or suffering (within subparagraph (a) of the relevant definition) rather than pain or suffering which is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature (within subparagraph (b) of the relevant definition). He argues that the second respondent failed to consider whether he may face pain or suffering in circumstances where the act or omission could reasonably be regarded as cruel or inhuman in nature and thereby failed to consider or apply the relevant definition of cruel or inhuman treatment.
However this ground cannot be accepted. The second respondent set out the correct statutory definitions at [55] of its reasons for decision. It was plainly aware of the law that was to be applied. The first aspect of [57] of its reasons for decision, which I have highlighted in the extract above, deals with whether the first limb of the definition of cruel or inhuman treatment or punishment was met. The second respondent concluded that it was not. The second passage I have emphasised above, in my view, is the second respondent’s attempt to deal with the second limb of the definition. It might also be considered to attempt to deal with the question of whether the relevant conduct meets the definition of the degrading treatment or punishment. It is expressed in infelicitous language. In my view, read fairly and with an eye not too finely attuned to error, the second respondent did understand the contents of the two limbs of the test.
I accept the first respondent’s argument that the applicant’s approach to this ground of review reads the first sentence in the second emphasised passage above too narrowly. The reference in that sentence to the level of pain and suffering that the applicant will face is, in my view, a reference to the discrimination, harassment and vilification faced by the applicant if he is returned to Pakistan and the finding made by the second respondent that those acts would be at a level which he has faced throughout his life and despite which he has prospered. Thus the reference in the first sentence of the second emphasised passage above to the “level of pain or suffering” is, in my view a reference to the actions leading to the feelings of pain or suffering engendered in the applicant by reason of those actions.
I accept the first respondent’s submissions that, although not perfectly expressed, the second respondent’s reasons demonstrate that it understood the relevant test and correctly applied it.
Ground Four - Apprehended Bias
The parties agree that the most recent statement of the apprehended bias rule in the context of administrative decision-making is to be found in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50. In that case, which concerned a review of a Protection Visa application pursuant to Part 7AA of the Act, the Immigration Assessment Authority had been furnished by the Secretary of Department of Home Affairs with information concerning certain charges against the review applicant. Those charges were irrelevant to the issues on the review and did not form part of the Authority’s record of decision. Keifel CJ and Gageler J said at [17] (footnotes omitted):
What the bias rule requires of the Authority is that its conduct and that of the Minister and the Secretary is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA provides might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review. That adaptation to the scheme of Pt 7AA of the standard formulation of the bias rule has a number of elements which warrant further exposition.
Nettle and Gordon JJ found the prejudicial nature of the material before the Authority gave rise to a reasonable apprehension of bias. They said at [92]-[93] (footnotes omitted):
What might lead the IAA to decide the appellant’s case otherwise than on its merits? The presence of prejudicial material which was irrelevant to the question before the IAA and which the IAA was mandated to consider. As Deane J said in Webb, “knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias.” Is there a logical connection between this and the feared deviation from deciding the case on its merits? Yes. The material was not relevant to the IAA’s task. If it influenced the IAA, whether consciously or subconsciously, then the IAA would deviate from deciding the case on its merits.
In light of this, might the fair-minded lay observer apprehend a lack of impartiality? Yes.
The applicant’s written submissions set out the background to this aspect of the review application (footnotes omitted):
20. In deciding the applicant’s Protection Visa application, the delegate had regard to criminal charges against the applicant for the purposes of assessing whether grounds for refusal of the application arose under s 36(1C) of the Act. As the applicant had not been ‘convicted by final judgment of a particularly serious crime’ for the purposes of s 36(1C) at the time of its decision, the delegate made no findings in respect of that criterion.
21. The Tribunal had access to information which was before the delegate in relation to the criminal investigation against the applicant, including the following:
21.1 An email of 15 March 2018, sent by a detective with the Dandenong police to an officer of the Australian Border Force, noting that he was ‘investigating a male person loitering around local schools [who] has tried to physically approach children’ and naming the applicant;
21.2 An email of 29 June 2018, sent by the delegate to the police informant investigating the charges against [name redacted], seeking to establish whether he had been convicted of an offence
21.3 An email of 2 July 2018 from the informant to the delegate, noting that the applicant would be arrested and interviewed ‘on 10th of July 2018 for 3 x sexual assault charges involving 3 different victims.’
22. The Tribunal also made the following inquiries in relation to the charges:
22.1 On 15 October 2018, a member of the Tribunal’s registry staff emailed the Department’s liaison team to clarify the status of the charges. The Department responded that it was ‘not in possession’ of the information requested.
22.1 On 31 October 2018, the Tribunal made an inquiry directly of the informant regarding the charges, noting that ‘these issues are relevant to the matter currently before the Tribunal.’ An out of office reply was received and it looks like the inquiry was taken no further.
23. The Tribunal reflected upon the charges at paragraphs [26] to [27] of its decision, as follows:
The Department’s file contained information about some serious criminal charges faced in Australia by the applicant which could potentially prohibit his eligibility for a Protection Visa. There were three charge of sexual assault pursuant to section 40 of the Crimes Act. According to that section, a person who commits an offence under this section is liable to Level imprisonment (10 years maximum). Despite requesting updated information about the charges, I did not receive any further information about them prior to the hearing. At hearing, the applicant advised that he is fighting those charges and they have been listed for a contested hearing in early 2019.
According to s 36(1C), a criterion for a Protection Visa is that the applicant is not a person whom the Minister consider, on reasonable grounds: is a danger to Australia’s security; or, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. The charges faced by the applicant are potentially a ‘particularly serious crime’ (which includes, as described in s 5(1), an offence against a law in Australia where the offence involves violence against a person and which is punishable by imprisonment for a fixed term or maximum term of not less than three years.) Similar provisions have effect in relation to s.36(2)(aa) when considering complementary protection. As at the date of my decision, those charges have not yet been resolved and the applicant has not been “convicted by a final judgement” of any offence. I therefore do not make any findings about section 36(1C) and it does not form part of my reasons for making the decision under review.
The applicant submitted that these paragraphs from the reasons for their decision demonstrate that the second respondent misunderstood its jurisdiction as encompassing questions arising under s.36(1C) of the Act. The applicant further submitted the second respondent’s consideration of the matters arising under s.31(1C) was irrelevant.
The first respondent accepts that, given the second respondent here was exercising the review powers given to it under Part 7 of the Act, it could not conduct a review of a decision made under s.501 or s.36(1C) to reject a visa application on character grounds: ss.411(1)(c) and 500(4)(c) of the Act. Such decisions are reviewable only by the second respondent in its General Division. I accept that as a correct statement of the position under the Act.
The first respondent concedes that “the Tribunal was not correct to consider, as it appeared to do at [27] CB 309, that it would be open to the Tribunal to refuse the applicant a visa on the basis of s 36(1C) of the Act.” However, I am not so sure that the concession is well-made. Both ss.411(1)(c) and 500(4)(c) provide that decisions to refuse or grant a Protection Visa or to cancel a Protection Visa relying on, inter alia, s.36(1C) are not decisions reviewable under Part 7 of the Act. The decision under review by the second respondent was not a decision which, in whole or in part, relied upon any assessment under s.36(1C) of the Act. It is therefore, not at all clear that the decision under review was caught by either s.411(1)(c) or s.500(4)(c). On any view of the delegate’s decision, it was a decision reviewable under Part 7 for the purposes of the Act. It is difficult to understand how the second respondent’s reference to one of the visa criteria mandated by the Act, which must be satisfied before a Protection Visa could be granted, could convert what is otherwise a decision reviewable under Part 7 into a decision which is not reviewable under Part 7.
However, given the way in which these parties have argued the case, there is no warrant to consider this aspect of the matter any further. I will proceed on the basis conceded by the first respondent. The charges against the applicant were thus irrelevant to the second respondent’s review.
The material referred to by the second respondent was limited to that set out above – an email from a police officer to a member of the Australian Border Force, an email from the informant to the delegate, a response from the Department to an email from the second respondent and a statement by the applicant that he was “fighting those charges”.
However, notwithstanding what might be considered the prejudicial nature of the information concerning the applicant, and in circumstances where the applicant was invited to give more information to the second respondent about them and did not take up that opportunity, the second respondent expressly disavowed any reliance upon that information.
I reject the submission that a fair-minded lay observer might apprehend that the second respondent might not have brought an impartial and independent mind to the fair resolution of the issue to be decided. There is a difference between a ground of review that asserts the second respondent took into account an irrelevant consideration (not the ground argued here) and a ground based upon an apprehension of bias. I have borne that difference in mind. But having regard to the second respondent’s identification of the material in its possession concerning the criminal charges (something it was probably not required to do), and its express statement that it made no findings about that material and did not rely upon it; an informed, fair-minded lay observer imputed with knowledge of the second respondent’s function would not apprehend that the second respondent might not have brought an impartial and independent mind to the fair resolution of the issue to be decided.
The applicant submits that having regard to CNY17 I should find the case of apprehended bias made out. But beyond the principles that emerge from that case, principles which bind me, the context in which CNY17 arose is quite different to the present case. This serves to distinguish the outcome in that proceeding from this proceeding.
First, the information at issue in this case is far less extensive than that at issue in CNY17 which, in that case, extended to some fifty (50) pages of material. Second, the second respondent here identified the material, how it came to the second respondent’s attention and what use was made of it. Those matters were absent in CNY17 and the members of the High Court thought that was significant: CNY17 at [96], [99], [100] and [141]. Third, the statutory context of the present application differs markedly from the statutory context in which CNY17 was decided. In that case the offending material was sent by the Secretary of the first respondent’s department pursuant to the statutory obligation to forward such material. That material was provided by the Secretary on the basis that the Secretary considered that it was relevant to the review. Pursuant to s.473DB(1) of the Act the Authority was required to consider that material. None of those matters are features of the statutory context in which the second respondent performed its task in this case.
There is another reason for rejecting this aspect of the applicant’s grounds of review. As the first respondent submits, even if there was some basis for an apprehension of bias on the part of the fair-minded lay observer, the applicant should be taken to have waived the right to object. The applicant was aware of the circumstances that he now argues gives rise to the disqualification of the second respondent on the basis of an appearance of bias. He did nothing about that before the second respondent rendered its decision. He took no objection to the second respondent completing its task. He was represented at all relevant times. In those circumstances I am satisfied, and I find, that he waived the objection that he now takes: AAL19 v Minister for Home Affairs [2020] FCAFC 114 at [101].
This ground of review demonstrates no jurisdictional error.
CONCLUSION
The application must be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 10 February, 2021. Associate:
Dated: 10 February, 2021
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