Ama16 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 70

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 70

File number: MLG 45 of 2023

Judgment of: JUDGE FORBES

Date of judgment: 7 February 2024

Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether decision affected by apprehended bias – where the review was on remittal – nature of Part 7AA fast track review process - whether reference in decision to previous judgments exposed the reviewer to prejudicial material about the applicant – where evidence called to explain preparation of review materials – whether failure to call IAA reviewer gives rise to Jones v Dunkel inference – whether Jones v Dunkel applicable to decision-makers – whether fair-minded lay observer would apprehend conscious or subconscious bias – relevant considerations – whether reasons illogical or irrational - judicial error established

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 60

Migration Act 1956 (Cth) s 473CB, 473CC, 473DB, 473DD, 473FA, 473JA, 473JE

Public Service Act 1999 (Cth)

Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] 269 CLR 439
AMA16 v Minister for Immigration and Border Protection [2017] FCCA 303
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Burgess v Minister for Immigration and Border Protection [2018] FCA 69
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112
CNY17 v Minister for Immigration and Border Protection; (2019) 268 CLR 76
CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568
CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074
Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (1989) 217 ALR 121
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DPT17 v Minister for Home Affairs [2019] FCA 872
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Herijanto v Refugee Review Tribunal [2000] HCA 16
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1993) 115 ALR 125
Isbester v Knox City Council (2015) 255 CLR 135
Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224
Muin v Refugee Review Tribunal [2002] HCA 30
MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72
Pattanasri v Minister for Immigration, Local Government & Ethnic Affairs (1993) 34 ALD 169
Plaintiff 174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1
Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87
SZQVI v Minister for Immigration & Citizenship [2012] FCA 1026
Webb v The Queen (1994) 181 CLR 41

Division: Division 2 General Federal Law

Number of paragraphs: 143

Date of last submission/s: 9 October 2023

Date of hearing: 25 September 2023

Place: Melbourne

Counsel for the Applicant: Mr Guo

Solicitor for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Yuile

Solicitor for the Respondents: Clayton Utz
ORDERS

MLG 45 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AMA16

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

7 FEBRUARY 2024

THE COURT ORDERS THAT:
1.A writ in the nature of certiorari be issued quashing the decision of the Second Respondent (the Authority) made on 5 December 2022.
2.A writ of mandamus be issued directing the Authority to hear and determine the Applicant’s application according to law.
3.The First Respondent (the Minister) pay the Applicant’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION

This is an application for judicial review of a decision of the Immigration Assessment Authority (the IAA or the Authority) dated 5 December 2022 to affirm a decision of a delegate of the Minister to refuse the applicant a Temporary Protection (subclass 785) visa (the visa).
There are only two issues which fall to be determined in this case. The first is whether the Authority’s decision was infected with apprehended bias and the second is whether the conclusion at [56] of the Authority’s reasons was an irrational or illogical finding.
In the reasons set out below, I have found that the decision of the Authority reveals apprehended bias. Ground one has been made out and the applicant is entitled to the relief sought in the application for review.
BACKGROUND
The applicant is an Iranian national who arrived in Australia on 22 October 2012 as an unauthorised maritime arrival. He identifies as a Shia Muslim.
On 30 June 2015 the applicant lodged an application for a Temporary Protection (subclass 785) visa.
The applicant’s claims centred around his prior involvement with the Basij. The applicant claimed that, while he initially believed the Basij was a cause which could help people, over time he grew to disagree with their activities, believed them to be corrupt and he challenged some of the Basij leaders. As a result, he claims to have been labelled anti-religion and anti-Islam by other members of the Basij.
The applicant claimed that on account of his views, his mother had been stopped on the street by men who stole her jewellery and threatened to put the applicant in jail or kill him. The applicant then claims he fled Iran due to a fear of persecution based on the Basij labelling him as anti-regime and anti-religion.
A delegate of the Minister refused the applicant a protection visa on the basis that they did not accept the applicant had ever joined the Basij. In 2016, the matter was sent to the IAA for review, where the decision of the delegate was affirmed.
The applicant sought judicial review of the IAA decision. During the process, the applicant became aware that the Secretary had provided the IAA with departmental communications which contained prejudicial information about him. The communications revealed that the applicant had been charged with indecent assault in 2015, that he had been issued with a notice of intention to cancel his bridging visa and he had been taken into immigration detention[1]. The assault charge was subsequently dismissed, although this information was not included in the departmental communications.
[1] Court Book (CB) 461
The Federal Circuit Court (as it then was) found that the information regarding the applicant’s indecent assault charge was highly prejudicial and irrelevant to the Authority’s task and, as a consequence, the IAA decision was affected by a reasonable apprehension of bias[2]. The Court found that jurisdictional error was made out.
[2] AMA16 v Minister for Immigration and Border Protection [2017] FCCA 303
The Minister appealed the Federal Circuit Court’s decision. On appeal the Minister sought to impugn the apprehended bias finding but was unsuccessful. The Full Court of the Federal Court[3] remitted the application to the IAA.
[3] Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
On 7 November 2017, the IAA again affirmed the delegate’s decision to refuse the applicant’s visa.
The applicant once again applied for judicial review of the Authority’s decision. On that occasion, the Minister conceded that the IAA had misapplied s 473DD(b)(ii) of the Migration Act 1956 (Cth) (the Act), and the matter was for the second time, this time by consent, remitted back to the IAA.
Immigration Assessment Authority
In a submission to the Authority on the second remittal, the applicant updated his claims for protection. In particular, the applicant’s representatives referred to the (then) recent civil unrest in Iran following the death of a 22-year-old Kurdish woman while she was in the custody of the morality police. The woman had been arrested for wearing unsuitable attire. That civil unrest involved protests across 80 Iranian cities, where large numbers of people were detained and a number killed, and demonstrations in other countries including Australia.
In the applicant’s written submission, made while he was in immigration detention, the applicant said[4]:
“Unrest in Iran has made these fears [of persecution for being imputed as anti-Iranian] even worse. I have already demonstrated beliefs that go against the Iranian government. I continue to oppose the Iranian government but would be too fearful to join protests”.
[4] CB 807
On 5 December 2022 the IAA (constituted by a different Reviewer) affirmed the decision of the delegate to refuse the applicant’s visa and published its reasons.
Relevantly, at [3]-[4] of its reasons, the IAA set out the litigation history of the matter as follows:
“3.The matter was referred to the Immigration Assessment Authority (IAA) which made a decision affirming the delegate’s decision. The applicant applied for judicial review of the IAA’s decision which was allowed by the Federal Circuit Court of Australia. The Minister appealed that decision. The Full Federal Court of Australia dismissed the Minister’s appeal and remitted the matter to the IAA for reconsideration.
4.The IAA made a further decision affirming the delegate’s decision. The applicant applied for judicial review of the that decision and on 3 October 2022, the Federal Circuit and Family Court of Australia remitted the matter to the IAA by consent orders. The Minister conceded that the IAA’s decision was affected by jurisdictional error by failing to correctly apply s.473DD(b)(ii) of the Migration Act 1958 (the Act).”
The significance of these two paragraphs will be explained in more detail later, but they are the foundation of the applicant’s contention that the Authority’s most recent decision was tainted by apprehended bias (ground one).
At [55] of its reasons, the IAA accepted the new information about the death of the young Kurdish woman in Iran. The Authority accepted that the incident had resulted in Iranian authorities “intimidating, beating and killing of some protesters”. However, it did not accept that “Iranians returning from western countries are being treated any differently than prior to the outbreak of these protests or with suspicion due to the protests or Australia’s alliances with other countries or the previous government’s position regarding Jerusalem”[5]. The IAA also did not accept that Iranian returnees are attributed with anti-regime views, nor would they be detained.
[5] Immigration Assessment Authority’s (IAA) reasons at [55]
In relation to the applicant’s submissions to the IAA that he “was too fearful to participate in protests”, the IAA found as follows:
“56.The applicant, in his statement dated 25 October 2022, states that the unrest in Iran has made his fears that he would face persecution as someone who is perceived as anti-religion and anti-Islam even worse. He further states that he continues to oppose the Iranian government but would be too fearful to join protests. I do not accept that he was perceived as anti-religion or anti-Islam while in Iran and I note that, he did not while in Iran and has not while in Australia, engaged in any political or religious activities that may be viewed adversely by the Iranian authorities. I am also not at all satisfied that the applicant has any intention or desire to engage in protests or that he would refrain from doing so for fear of persecution.”
Paragraphs [55] and [56] of the Authority’s reasons underpin ground two of this application for review. As will be explained, the applicant contends that paragraph [56] in particular reveals illogical and irrational reasoning by the IAA.
Application for judicial review
On 6 January 2023 the applicant filed an application for judicial review of the IAA decision. An amended application was lodged on 28 August 2023.
The applicant pressed only two grounds of review which were particularised as follows:
2. The decision of the IAA is affected by apprehended bias.
Particulars
The IAA was provided with prejudicial but irrelevant information that the Applicant had been charged with indecent assault, with the charge leading to the cancellation of his bridging visa and subsequent immigration detention. The information was conveyed to the IAA in various forms including in the reasons for judgment of this Court and the Full Federal Court which resulted in the matter being remitted.
3. The decision of the IAA was irrational or illogical.
Particulars
(a)The Applicant made a protection claim in his statutory declaration of October 2022 that he continues ‘to oppose the Iranian government but would be too fearful to join protests’: CB 807. The evidence provided by the Applicant in relation to anti-Iranian government protests, on which the claim was based, referred to protests concerning the death of a ‘22- year-old Kurdish woman who collapsed while in custody of the morality police and later died’ in September 2022: Reasons [54]; CB 836-847.
(b)At paragraph 56 the IAA rejected the claim and found that it was ‘not at all satisfied’ that the Applicant would engage in political activity in the future, or would refrain from doing so, because of fear, because the Applicant did not participate in any political protests in Australia.
(c)The reasoning was irrational or illogical because at the time of the claim, and the time of the death of the woman which triggered worldwide protests (as described in particular (a)), the Applicant was in immigration detention and therefore was not at liberty to take part in any such protests.
Both the applicant and the Minister were represented in these proceedings. Prior to the hearing representatives of the Minister filed a court book. Each of the parties then filed detailed written outlines of submissions.
In his written submissions, the applicant makes plain that there had been issues between him and the Minister regarding discovery in the lead up to the hearing. The applicant contended that on account of the Minister not agreeing to discovery[6]:
“[…] the court book does not make clear the full extent of the material that was before the IAA at the time of its decision. However, the court book does include the Apprehended Bias Reasons[7]. It also includes the reasons of the Administrative Appeals Tribunal in deciding to affirm a cancellation of the Applicant’s bridging visa on the back of the indecent assault allegation.”
[6] Applicant’s submissions at [19]
[7] Defined elsewhere to mean the reasons of the Federal Circuit Court in AMA16 v Minister for Immigration and Border Protection [2017] FCCA 303; and the reasons of the Full Court in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
Foreshadowing his arguments to the review hearing, the applicant’s written submissions went on[8]:
“Given that the court book was prepared by the Minister, and the reasonable assumption based on the overarching purpose that the Minister would have only included relevant material in the court book, it should be inferred that at least the Apprehended Bias Reasons (if not also the AAT reasons as referred to in the paragraph above) were before the IAA. There is no other apparent basis for relevance to explain why these materials are in the court book.”
[8] Applicant’s submissions at [20]
Presumably in response to these submissions, and to address the live question of what materials were before the Authority at the time of its review, the Minister filed two affidavits, one each from Mr Jared Percy Mintz, the solicitor with carriage of the matter at Clayton Utz, and Ms Kate Joanne Dolman, the Director of Operations at the IAA. The Minister gave notice of his intention to rely on these affidavits. Evidentiary objections were largely resolved between counsel prior to the hearing.
On 25 September 2023 the parties came before me for a final hearing of the matter. The applicant was represented by Mr Guo of Counsel and the Minister was represented by Mr Yuile of Counsel.
HEARING
Evidence
The Minister sought to adduce evidence from Mr Mintz and Ms Dolman. Both witnesses were cross examined.
Mr Mintz
Mr Mintz is a solicitor employed by Clayton Utz who has been doing migration work since 2020. In this proceeding Clayton Utz is representing the Minister. Mr Mintz swore to the truth of his affidavit dated 11 September 2023 and it was read into evidence.
In his affidavit Mr Mintz explained the process by which his firm had prepared the court book which had been filed on behalf of the Minister in these proceedings. He explained that it had been the usual practice of his office to include documents from earlier proceedings which had led to the remittal, on the basis that those documents would likely assist the court by providing a full judicial history of the matter.
When cross-examined, Mr Mintz gave evidence that the court book in these proceedings was not personally prepared by him. Although he had carriage of the matter, he was away for a period and another Clayton Utz solicitor had been involved and had overseen the process during his absence.
Mr Mintz said that on most occasions a court book would comprise the “universe of material” provided by the Department to his firm in a particular matter. He conceded there was a working assumption that the files received from the Department were complete but he said there were times where Clayton Utz might suspect that relevant documents are missing, which would necessitate a request directed to the Department for those documents.
Mr Mintz said that not all documents in the filed court book should be taken to have been referred to the Authority. On the question of what documents the Authority actually had before it when conducting the review, Mr Mintz gave evidence that his office had sent the applicant’s solicitors a download link which included a screenshot from the Department’s Country of Information database (CISNET) and two PDF portfolios of documents which had been referred to the Authority[9].
[9] Affidavit of Jared Percy Mintz at [11]-[12], Annexures JPM-4 and JPM-5
Mr Mintz was questioned about his knowledge of an email between the IAA and the applicant’s representative dated 20 October 2022, a copy of which had been attached to Ms Dolman’s affidavit as Annexure KJD-1. In that email, which was sent prior to the remitted review, a Ms Lucy Collins of the IAA informed the applicant’s representative that:
“I am contacting you from the Immigration Assessment Authority (IAA) as the nominated representative for the purposes of providing submissions for Mr [name withheld]. Mr [name withheld]’s case was remitted by the Federal Circuit and Family Court on 5 October 2022 and the IAA will now undertake a new review.
Please note, the IAA and the Department of Home Affairs files provided to the IAA Reviewer will not contain any material or reference to any material that may be considered prejudicial. We note the following correspondence received during the previous review. Only redacted copies of this correspondence will remain on file (see attached).
•3 October 2017 email from the applicant
•The copy of the Court’s judgment of 30 August 2017 attached to this email will not be made accessible.
•17 October 2017 email from the previous representative
•The attachment titled ‘IAA Submissions - 2017.10.17’ has been redacted to exclude references to apprehension of bias.
Please advise of any concerns you may have with this approach by close of business Friday 28 October 2022.”

Mr Mintz agreed that the email bears directly on the question of what material was before the Authority at the time of its review. He conceded that the email referred to above was not included in the court book which had been prepared by his colleagues.
It was put to Mr Mintz that the email was not included in the court book because Clayton Utz had not been provided everything from the IAA that was relevant to the apprehended bias ground. He said that he had familiarised himself with the files which had been provided to Clayton Utz by the Department and the IAA but he did not recall having seen the email.
Ms Dolman
Ms Kate Dolman has been the Director of Operations for the IAA since October 2017. Ms Dolman swore to the truth of her affidavit dated 11 September 2023 and it was read into evidence.
Ms Dolman deposed that she supports the Senior Reviewer in relation to the administration and management of the IAA. She also leads a section of support staff responsible for providing administrative support to the IAA.
In her affidavit, Ms Dolman explained the process by which the Department ordinarily provides “review material” to the Authority in accordance with s 473CB(1) of the Act for the purposes of a fast track review. She said that all material is provided to the Authority electronically and is received into the Authority’s electronic file management system, known as CMS. A unique reference number is assigned when a fast track reviewable decision is referred to the IAA and the review material received from the Department is saved to the CMS file. Any additional materials that the Authority gets, sends or receives in the course of its review is also saved, but to a separate tab in the CMS file.
Ms Dolman’s affidavit included an explanation of how the CMS file was created when this application was remitted to the IAA for reconsideration by Federal Circuit and Family Court of Australia (Division 2) on 3 October 2022. She said that this particular matter was brought to her attention by the IAA support team due to the history of litigation and the finding of a prior court in relation to prejudicial material having been given to the IAA.
Ms Dolman said that she gave clear directions to her staff to take actions to ensure that the CMS file did not include any prejudicial material before it was allocated to an IAA Reviewer. She also gave her staff directions to arrange for electronic access restrictions to be put in place so that earlier IAA files and prejudicial material pertaining to the applicant could not be accessed by the Reviewer. Ms Dolman stated that she directed a staff member to write to the applicant’s representative to confirm that the IAA file and the department’s files would not contain any prejudicial material or reference to such material. The letter sent to the applicant was annexed as KJD-1 (as referred to above)
When cross-examined, Ms Dolman said that in the course of preparing her affidavit she had made various enquiries of IAA support staff including Ms Kelly Tabone (Team Leader) and Ms Lucy Collins (Case Support Officer). Ms Tabone informed Ms Dolman that she was not part of the process undertaken to prepare the file for the Reviewer in this matter. Ms Collins, on the other hand, confirmed that she was involved in the process. Ms Collins confirmed that a request had been made by her to the e-services section of the IAA, requesting that certain information be restricted on the file.
Ms Dolman gave evidence that she was directly involved in the process of preparing the file prior to allocating it to a Reviewer. She also said that there were four or five members in the team that she managed at the time but she was unsure whether anyone apart from herself and Ms Collins played a role in preparing the file.
Ms Dolman gave evidence that this remitted matter was significant in the way in which the file was created, which she described as being “rare”. She said that it was the first case in which prejudicial material which had brought about a court remittal was required to be carefully restricted from an IAA Reviewer. She said that out of an abundance of caution, a positive decision was made not to store any prejudicial information or any reference to prejudicial information on the Authority’s case management system. Ms Dolman explained that the correspondence in KJD-1 was stored in the IAA mailbox and was only accessible to herself, her support team and the Senior Reviewer. However, she accepted that she could not be certain that others at the IAA did not have access to the mailbox.
Counsel for the applicant asked Ms Dolman whether an audit trail could be obtained from the Authority’s IT department to help identify who was involved in the file’s preparation. Ms Dolman said that she had not made enquiries with the IT department but added that if there was an audit trail, it would only capture particular changes or events created within the case management system.
Ms Dolman was taken to the litigation history outlined by the Reviewer at [3] and [4] of the reasons. Ms Dolman was unable to explain how the Reviewer came into possession of this background. Ms Dolman said that the Full Court judgment and the consensual remittal of the review did not form part of the “universe of material” which had been provided to the Reviewer. Ms Dolman accepted that in order to prepare that history the Reviewer must have obtained information external to what was contained in the Authority’s file.
Ms Dolman said she could not recall whether she had spoken to the Reviewer about the review. Ms Dolman said that she is not in any position to say what the Reviewer might have done or might not have done in relation to working documents, or what access the Reviewer might have had to documents outside the electronic files which had been provided to her. Ms Dolman also agreed that she could not be sure whether the Reviewer could have made a request, of someone in the support team at the Authority, to seek further information from the Department. Ms Dolman said that she is only in a position to attest to what was made available to the Reviewer in the IAA case management system as prepared by her.
In the course of cross examination, Ms Dolman agreed that there was no way of telling what the Reviewer might have looked at or who the Reviewer might have spoken to, other than by asking the Reviewer herself. Ms Dolman was asked whether the Reviewer currently works for the Authority and she confirmed that she did.
Ground one
As previously stated, this ground of review seeks to impugn the Authority’s decision on the basis that it was infected with apprehended bias. The applicant contends that the Authority undertaking the review of the delegate’s decision was or may have been exposed to highly prejudicial information about the applicant such that a fair-minded lay observer properly informed of all the relevant facts might conclude that the Authority was not able to bring an independent and impartial mind to the relevant statutory task.
The fast track statutory task
Any claim of apprehended bias must be assessed in the context of the relevant legal, statutory and factual framework[10].
[10] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17) at [22]; Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [65]; Isbester v Knox City Council (2015) 255 CLR 135 (Isbester) at [20] and [23]
The decision of the Authority was made according to the fast track review process in Part 7AA of the Migration Act. The nature of the jurisdiction exercised by the Authority when conducting a review of a fast track reviewable decision is settled:
“[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”[11]
[11] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Plaintiff M174) at [17]
The fast track scheme is a “mechanism of limited merits review” largely focused on the materials that were already before the delegate[12].
[12] CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24]
Relevantly, s 473CB(1) provides:
Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a)a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;[…]
Section 473CB highlights the critical role of the Secretary in providing all the relevant “review material” to the IAA. In ABT17 v Minister for Immigration and Border Protection [2020] 269 CLR 439 the plurality (Kiefel CJ, Bell, Gageler and Keane JJ) explained at [6]-[8][13]:
“6. “Review material”, which the Secretary is obliged in every case to provide to the Authority and which the Authority is obliged in every case to consider in exercising that jurisdiction, comprises material within three categories. The first is a statement concerning the referred decision setting out the findings of fact made by the delegate, referring to the evidence on which those findings were based and giving reasons for the decision. The second is material provided by the referred applicant to the Minister before the delegate made the referred decision. The third is other material in the Secretary’s possession or control considered by the Secretary to be “relevant” to the review in the sense that it is “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding”.
7. Conformably with the nature of the jurisdiction to be exercised by the Authority in the conduct of the review, the obligation of the Authority to “consider” the review material provided to it by the Secretary is to “examine the review material ... to form and act on its own assessment of the relevance of that material to the review of the referred decision”.
8. The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.”
[13] Footnotes and citations omitted
Under s 473DB, the default position is that the IAA is required to consider the material provided under s 473CB without accepting or requesting new information from the applicant or inviting them for interview. As articulated in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17) at [26], “the documents provided as review material are… elevated by the scheme”.
The Authority’s review is typically conducted “on the papers” and there is no need for the reviewer to go outside that scope, other than as prescribed by Part 7AA.
Reasonable apprehension of bias - relevant principles
The statutory exhortation at s 473FA(1) of the Migration Act 1958 (Cth) mandates that in carrying out its functions the Authority “is to pursue the objective of providing a mechanism of limited review” that is, amongst other things, “free of bias”.
Bias, although incapable of precise definition, “connotes the absence of impartiality”[14]. The rule against bias is concerned with public confidence in the administration of justice. It is important to the quality of decisions being made and to the confidence and cooperativeness of individuals affected by those decisions. By enhancing the appearance and actuality of impartial decision-making, it fosters public confidence in decision-makers and their institutions[15].
[14] Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at 348, 396
[15] CNY17 at [55] per Nettle and Gordon JJ
It is well accepted in the administrative law setting that knowledge of some prejudicial but inadmissible fact or circumstance may give rise to an apprehension of bias and judicial error on the part of a decision-maker. Apprehended bias is a failure in one limb of the obligation to afford procedural fairness in administrative decision-making. Where apprehended bias is present, the actuality and appearance of impartiality in the decision-making process is tainted, such that the decision-maker’s task is not performed in accordance with statute. Apprehended bias is in that sense a species of jurisdictional error.
In the context of a fast track review under Part 7AA of the Act, the relevant principles relating to a reasonable apprehension of bias were carefully distilled by Jagot J in Minister for Immigration, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 (CRS20), a case which bears many similarities to the present case. At [34]-[37] her Honour stated:
“34.The principles relating to a reasonable apprehension of bias are clear. In the present context there will be such a reasonable apprehension if a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA of the Migration Act provides might reasonably apprehend that the IAA 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: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17 HCA) at [17].
35.If the Secretary provides irrelevant material to the IAA under s 473CB(1)(c) of the Migration Act, then “the totality of the circumstances that exist at the time when that question arises” are relevant to whether a reasonable apprehension of bias arises: CNY17 HCA at [20]. If the provision of that material does not suggest an “instruction, advice or opinion” of the Secretary to the IAA, but instead is said to give rise to a reasonable apprehension of bias by operation of subconscious effect, then “the hypothetical fair-minded lay observer can be expected to be more circumspect”: CNY 17 HCA at [26].
36.As various cases demonstrate (including CNY17 HCA, CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 (CNY FCA), FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456, MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152), relevant considerations in the case of an alleged subconscious effect of irrelevant material include, at the least:
(1)       the nature of the material and whether it is irrelevant;
(2)       the kind and extent of prejudice the irrelevant material might involve;
(3)       the nature of the decision-maker;
(4)       remarks made by the decision-maker during the course of a hearing;
(5)remarks made by the decision-maker in the reasons for decision as to what the decision-maker has done with the irrelevant material (but not self-serving disavowals of any possible apprehension of bias); and
(6)whether the affected person was informed about the existence of the irrelevant information and given a reasonable opportunity to comment on it.
37.As the High Court emphasised in CNY17 HCA at [21] (citing Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at [11]), in deciding if the alleged reasonable apprehension of bias is made out, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”. That is, the court decides if it considers the fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA of the Migration Act provides might reasonably apprehend that the IAA might not bring an impartial and unprejudiced mind to bear on the required review exercise in all of the apparent circumstances. The court does not decide if it (the court) reasonably apprehends that the IAA might not bring an impartial and unprejudiced mind to bear on the required review exercise in all of the apparent circumstances. This distinction is important because the relevant standard for justice being seen to be done is that of the fair-minded lay observer properly informed about the nature and substance of the required decision-making process. It is not the standard of a judicial decision-maker who is routinely presented with, and expected to discard, irrelevant and potentially highly prejudicial material.”
The test for apprehended bias requires the Court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. Further, the test for apprehended bias does not rest on a finding of actual bias or depend on the final decision actually made. One does not need to find that the irrelevant material affected the decision. One needs only to find that the fair-minded lay observer might have reached the conclusion that the irrelevant material might lead to a deviation from the merits[16].
[16] CNY17 at [69]-[70] per Nettle and Gordon JJ
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 review 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[17].
[17] CNY17 at [17] per Kiefel DCJ and Gageler J
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. Where the question arises for determination after the Authority has made a decision on a review, the totality of the circumstances to be considered will also include the decision and the reasons that the Authority has given for its decision[18].
[18] CNY17 at [20]
In light of the principles, the relevant question in this case comes down to whether a fair-minded lay observer, informed as to the nature of the fast track review process and of relevant facts, including that the Reviewer may have had access to or read court judgments which included prejudicial information about the applicant, might reasonably apprehend that the IAA might not bring a fair, impartial and independent mind to the determination of the matter on its merits.
Applicant’s submissions
At [3]-[4] of its reasons the Authority set out the litigation history of this matter. The applicant contends that this litigation history could not have been constructed by the IAA Reviewer other than by the Reviewer having access to or being in some other way exposed to the judgments and orders referred to. In light of evidence that the IAA files provided to the Reviewer did not include the judgments or references to them, the applicant contends that the Reviewer can only have become aware of the judgments if told about them by the Department or by someone else within the IAA administration or by seeking out that information independently.

The applicant submits that the IAA’s exposure to the Full Court reasons which include a summary of the prejudicial but irrelevant information (i.e. the charge of an assault against a female in indecent circumstances) is sufficient to give rise to apprehended bias. It is submitted that the Full Court judgment identifies the prejudicial material “in such a way that the real possibility of a potential subconscious effect of the material in the judgment on the decision-making of the IAA might not be able to be discounted”[19].
[19] CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 at [37] per Jagot J
Counsel for the applicant submitted that there was a considerable lacuna in the evidence called by the Minister and that critical questions such as how the Reviewer got their hands on the judgments and what the Reviewer did with that information, remain completely unanswered.
There is no evidence which can inform the Court about how the judgments and orders were obtained by the Reviewer, when and how the judgments were considered in the decision-making process, what (if any) information in the judgments was taken into account and whether any prejudicial material referred to in the judgments was considered or expressly rejected for consideration.
The applicant’s point is that the prejudicial information was capable of operating on the subconscious of the Reviewer in a manner that might subvert or compromise rational or logical analysis and, in the absence of evidence, one cannot discount that possibility.
Counsel for the applicant submitted that the IAA Reviewer, had she been called to give evidence, could easily have explained whether she had the judgments, how she had come into possession of them, whether she read the judgments, whether the prejudicial information was known to her and how it was dealt with in the course of the review. Yet that evidence was not called. In the circumstances, the applicant submitted the Minister’s failure to call the Reviewer should give rise to a Jones v Dunkel[20] inference that her evidence would not have assisted the respondents’ case.
[20] Jones v Dunkel (1959) 11 CLR 298
Moreover, the applicant submits that even with the Reviewer not being called, it was open to the Minister to have called other IAA administrative staff who were closer to the review process than Ms Dolman. Those staff including Ms Collins and Ms Tabone could have illuminated questions such as whether the Reviewer sought or obtained additional documents beyond those contained in the IAA electronic files. Again it was submitted that the failure to call them gives rise to a Jones v Dunkel inference adverse to the Minister’s case.
Minister’s submissions
The Minister contended that the apprehended bias ground must fail at a factual level because there was no evidence that the Reviewer was aware of the prejudicial information. There is also no evidence of any reference to the prejudicial information in the bundle of documents that was provided to the Reviewer by the IAA.
Mr Yuile relied on Ms Dolman’s evidence that her team had carefully put together a file for the Reviewer by redacting material from the old IAA files. The Minister submitted that there was no way for the Reviewer to access the old files as they were locked in the IAA’s case management system. Further, the email at Annexure KJD-1 identifies the precise steps taken by Ms Dolman’s administrative team to remove information that might be prejudicial.
The Minister submits that paragraphs [3] and [4] of the Authority’s reasons represents the high-water mark of the applicant’s case. The Minister contends that the litigation history recorded in [3] and [4] does no more than record that certain prior events had taken place - there was an appeal, a remittal and a further decision from the IAA. The Minister does not dispute that the Reviewer must have had knowledge about that history from some source, but from that alone the Court cannot draw an inference that the Full Court’s reasons were before the Reviewer, let alone that prejudicial information in those reasons may have poisoned her mind.
Further, contrary to the applicant’s submission, the Minister says that the question of how the information came before the Reviewer is directly relevant. The Minister submitted that it is reasonable to anticipate that IAA reviewers, in the ordinary course of performing their functions, will keep abreast of legal developments and will read or become aware of notable decisions. Although it cannot be said that apprehended bias cannot be made out if a Reviewer was to read certain information on their own accord, the Minister submits that incidental knowledge is qualitatively different to a situation where prejudicial information is provided to the decision-maker directly in the course of the review.
In respect of the applicant’s contention that not calling the Reviewer gives rise to a Jones v Dunkel inference, Mr Yuile submitted that the applicant’s argument was little more than an attempt to fill the gaps in the evidence[21].
[21] Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 (Jagatramka) at [49]; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 (Kuhl) at [64]
Whilst the Minister agrees that the Reviewer is the only individual who could confidently attest to what was on their mind at the time of writing the decision, the Minister submitted that a Jones v Dunkel inference cannot be drawn against the respondents because an IAA Reviewer, like a member of the Administrative Appeals Tribunal (AAT) who enjoys the same protections and immunities as a justice of the High Court, should not be required to give evidence to justify a decision made pursuant to its statutory function.
The Minister submitted that although IAA reviewers do not have the same immunity as members of the AAT, they hold similar positions and perform similar functions and, akin to judges, are excluded from the Jones v Dunkel rule. Accordingly, the Reviewer should be exempt from being called and therefore no adverse inference can be drawn from the Minister’s omission.
In light of the above, the Minister submitted that the Court is left with nothing more than paragraphs [3] and [4] of the IAA’s reasons which, on their face, cannot give rise to a finding that the Reviewer was subject to apprehended bias.
Consideration
Jones v Dunkel - failure to call the IAA Reviewer
The rule in Jones v Dunkel operates where there is an unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party. However, the rule is complex and unless the appropriate circumstances are present, the court will not be bound to draw the adverse inference. Moreover, where the inference is drawn, the rule cannot be used to fill gaps in the evidence or to convert conjecture into suspicion[22].
[22] Jagatramka at [49]; Kuhl at [64]
As discussed above, a question arose as to whether the rule stated in Jones v Dunkel can apply in circumstances where the Minister has not called evidence from an Immigration Assessment Authority Reviewer whose decision is being reviewed by this Court for judicial error. Debate between counsel led me to invite each of the parties to file short written submissions on that issue after the hearing.
Later in these reasons I have determined that certain inferences can be drawn from the evidence without the need for Jones v Dunkel to be called into aid. Nonetheless, in its supplementary written submission filed on 2 October 2023 the Minister stated that he had not been able to find any decision that decides directly whether Jones v Dunkel inferences can be drawn from the failure to call evidence from an IAA Reviewer. Having received submissions on the question, I consider it appropriate to express my view.
The applicant says that there is no principled reason why an IAA Reviewer, as a decision-maker, should be regarded as holding a privileged position which affords immunity. The applicant submits that unlike appointees to the AAT, IAA Reviewers, like Ministerial delegates, are public servants[23].
[23] Migration Act 1958 (Cth) s 473JE(1)
The applicant submits that Jones v Dunkel has been held to apply to administrative decisions made by the Ministers of the Crown[24] and by delegates[25], and that IAA Reviewers should be seen to be in no different position. Noting the Minister’s concession that IAA Reviewers do not enjoy the same protections and immunities as members of the Administrative Appeals Tribunal, the applicant says that there is no statutory justification for IAA Reviewers to stand beyond the reach of Jones v Dunkel.
[24] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [130]‑[131] (Griffiths, White and Bromwich JJ); Burgess v Minister for Immigration and Border Protection [2018] FCA 69 at [79] (Charlesworth J); Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [99] (Murphy and Rangiah JJ)
[25] Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 93 (Hill J); Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (1989) 217 ALR 121 at 142 (Hill J); Irving v Minister for Immigration, Local Government and Ethnic Affairs (1993) 115 ALR 125 at 137 (French J); Pattanasri v Minister for Immigration, Local Government & Ethnic Affairs (1993) 34 ALD 169 at 178 (Burchett J)
There is little doubt that where decision-makers are by statute conferred protections and immunities which are the same as those which apply to judges, there is a clear legislative intent that the decision-maker should not be required, in proceedings which challenge their decision, to go outside the published reasons for the decision or to explain their process of consideration and reasoning or to engage as a protagonist in the litigation.
In Herijanto v Refugee Review Tribunal [2000] HCA 16 (Herijanto) the applicant sought to direct interrogatories to the Refugee Review Tribunal (the RRT) to ascertain from the RRT member whether he or she had read a particular document, in what form the document was read, from where it was obtained and other information. The question before the High Court (Gaudron J) was whether such interrogatories could be directed to a tribunal member who, by the combined operation of s 435(1) of the Migration Act1958 (Cth) and s 60 of the Administrative Appeals Tribunal Act 1975 (Cth), enjoyed the protections and immunity of a justice of the High Court.
In Herijanto, Gaudron J held that interrogatories directed to the tribunal should not be allowed because they sought information regarding its decision-making processes. At [16] her Honour said:
“There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, “the record” bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment[…]”
The case of Muin v Refugee Review Tribunal [2002] HCA 30 (Muin), involved judicial review of a decision of a member of the then RRT and specifically engaged the Jones v Dunkel issue. Gleeson CJ said at [25]:
“It was argued for the plaintiff that Jones v Dunkel supported an inference that the Tribunal member had not read, and had regard to, the Part B documents. Relating Jones v Dunkel to a case stated procedure has its own difficulties; but there is a more fundamental problem about the argument. It is based upon a false premise as to the role of the Tribunal. Section 435(1) of the Act and s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth), read together, provide that Tribunal members enjoy the same protection and immunity as a Justice of this Court. It places a Tribunal member in a false position, inconsistent with that immunity, to expect a member, in proceedings challenging his or her decision, to go outside the published reasons for decision and explain the process of research and consideration leading up to the making of the decision. Furthermore, this Court has taken pains to discourage tribunals and members from endangering their impartiality by assuming the role of protagonist in proceedings challenging their decisions. Consistently with that approach the Tribunal has entered a submitting appearance in these proceedings. The process of factual inference considered in Jones v Dunkel involves an expectation that the party against whom the inference is drawn would call the absent witness. There was no proper basis in the present case for an expectation that the Tribunal member would be called to give an account of the process of decision making beyond that which is set out in her published reasons for her decision.”
In the present case, the applicant says that the position of Reviewers engaged by the IAA is very different and that their decision-making should not be seen in the same light as tribunal members who expressly enjoy judicial immunities. The applicant’s position is that IAA Reviewers are more akin to delegates of the Minister. They are both public servants engaged under the Public Service Act 1999 (Cth), they both make merits decisions, and they are both required to afford procedural fairness and be “free of bias” in the discharge of their respective statutory tasks.
Moreover, the applicant submits that parliament plainly did not intend to afford the same level of protections and immunities to IAA Reviewers as has been afforded to Tribunal members. Although the IAA is established[26] within the Migration and Refugee Division of the AAT and is a separate office within the Administrative Appeals Tribunal, IAA Reviewers do not enjoy the same protections as tribunal members. There was a legislative proposal to confer such immunities and protections on IAA Reviewers, but that proposal fell away from the Amending Act in the Senate[27].
[26] Migration Act 1958 (Cth) s 473JA
[27] History to the Courts and Tribunals Legislation Amendment (2021 Measures No 1) Act 2022 (Cth)
In DPT17 v Minister for Home Affairs [2019] FCA 872; 166 ALD 208 at [47], Banks-Smith J rejected a submission that Jones v Dunkel could not apply to delegates. The applicant submits that, where IAA Reviewers do not enjoy statutory immunity, it would be incongruent for delegates to be susceptible to Jones v Dunkel inferences, and for IAA Reviewers not to be.
The Minister submits that the “statutory immunity” issue is not the sole consideration when determining whether IAA Reviewers are susceptible to a Jones v Dunkel inference. The Minister submits a further broader policy consideration is whether the application of Jones v Dunkel principles would be inconsistent with the High Court’s efforts to “discourage tribunals and members from endangering their impartiality by assuming the role of protagonist in proceedings challenging their decisions”, as expressed in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Hardiman) at 36.
In Muin at [77], Kirby J was of the opinion that the giving of evidence about the decision-making process may be contrary to the principle in Hardiman that members of administrative tribunals (in that case the RRT) should not take an active part in proceedings in which their decisions are challenged. Kirby J was of the view that it would be demeaning to the office of the decision-maker and potentially damaging to the tribunal if members were obliged to give evidence for fear of adverse inference if they did not.
Further, in Muin at [300], Callinan J observed:
“To find for the plaintiff on this argument would inhibit the performance of the Tribunal’s functions. Additionally, it could have the capacity to inhibit the use, that is, the proper use, by a specialist tribunal of the special knowledge that it has accumulated in carrying out its functions. It would encourage the active participation of a defendant of the Tribunal in collateral challenges to its decisions in this Court and the Federal Court. It would effectively compel the Tribunal to do more than what it is required to do under the Act, which is, in substance, to make a decision in accordance with the procedures prescribed by the Act and to commit that decision to writing. And it would mark a departure from the well-established principle that, in general, a court or tribunal is taken to have exposed its thinking and reasoning, or indeed has failed to do so when it should have, in its reasons for decision.”
The Minister’s position is that it is not to the point that IAA Reviewers are employed as public servants. The Minister submits that IAA Reviewers should be seen as distinct from Departmental officials and delegates for a number of reasons. The Reviewers form part of the IAA, a body established by the Migration Act and within the Migration and Refugee Division of the AAT. The Authority’s Reviewers are required to make de novo decisions on the merits within the framework of the fast track review processes set out in Part 7AA of the Migration Act[28]. In this respect they perform a similar function to tribunal members. The IAA is independent of the Department[29]. The Authority’s decisions are subject to judicial review and when they are challenged, as here, the IAA makes a submitting appearance in court proceedings conducting judicial review, in accordance with Hardiman.
[28] Migration Act 1958 (Cth) s 473CC; see also Plaintiff M174 at [17]
[29] See the explanatory memorandum to the Bill that introduced Part 7AA into the Act, as extracted and described in Minister for Immigration and Border Protection v AMA16 (2017) FCAFC 136 at [13]
Further, the Minister submits that the non-application of Jones v Dunkel finds support in the way the courts have approached the same question in relation to decisions of Independent Merits Reviewers. Such reviewers, like the IAA Reviewers, consider the decisions of delegates, through a process of administrative arrangements.
In SZQVI v Minister for Immigration & Citizenship [2012] FCA 1026, a case concerning judicial review of a decision of an Independent Merits Reviewer, Gilmour J applied the reasoning in Muin to reject any recourse to Jones v Dunkel. At [43] his Honour said:
“The Reviewer was self-evidently not a party to any litigation during the Independent Merits Review. As a necessary party in the application for review before the Federal Magistrate he had no obligation to put on evidence. The reliance on the rule in Jones v Dunkel is misconceived.”
I accept the parties’ submissions that IAA Reviewers do not enjoy the same immunities and protections as persons who are appointed as members of the AAT. However, that is not the end of the story and it fails to have regard to what I consider to be a broader range of statutory and policy considerations.
In my view, the drawing of a Jones v Dunkel inference from the failure to call an IAA Reviewer in judicial review proceedings which challenge the reviewer’s decision would be inconsistent with the principle in Hardiman as discussed in Muin.
As mentioned, the IAA itself was established by an amendment to the Migration Act 1958 (Cth) as a body within the Migration and Refugee Division of the AAT. It is independent of the Department and Ministerial delegates. It is established to conduct independent merits reviews of departmental decisions within the architecture of Part 7AA of the Act. Under the relevant statutory scheme, it is required to perform a defined task within defined parameters. The function of the reviewers is tightly constrained by statutory provisions regarding, inter alia, the information on which reviews are to be conducted and the requirements of procedural fairness (including being free of bias). The decisions of the IAA are reviewable by a court for judicial error.

The IAA is a specialist body with specialist skills. What is required of the Authority is to do no more than is required of it by Part 7AA of the Act, which is, in substance, to make a decision in accordance with the prescribed procedures and to commit that decision to writing. As Callinan J said in Muin, the record of that decision should stand as its reasons and the Reviewer should not be required to expose their thinking and reasoning processes beyond what is revealed in the decision record.
No doubt the IAA Reviewer is the person best placed to fill the lacuna in evidence and indeed may be the only person who can reveal what information it had before it at the time of its review, the source of that information and how it was considered (or not). But once a decision has been made and published, the IAA should not be actively involved in proceedings which challenge the decision and the Reviewer cannot be called upon to expose his/her reasoning any more than is revealed in the record.
In my opinion, allowing a Jones v Dunkel inference to be drawn where the Minister does not call an IAA Reviewer would be contrary principle and practice.
For completeness, the applicant argued that by calling Ms Dolman from the IAA to give evidence the Minister had effectively crossed the Rubicon and exposed the Authority’s internal processes to the Court. The applicant submitted that it would be inconsistent for the Minister to, on the one hand, rely on Ms Dolman’s evidence about the operations of the IAA including the preparation of review materials and, on the other hand, argue that the Reviewer is beyond reach.
I do not consider that by calling Ms Dolman the Minister has acted inconsistently with the position it takes in relation to the Jones v Dunkel inferences. The principles in Hardiman permit of exceptions - one of which being that a tribunal does not become involved as a protagonist in a proceeding if its involvement is limited to matters going to “the powers and procedures” of the Tribunal. In my view, the evidence of Ms Dolman is of that character.
Inferences may still of course be drawn from Ms Dolman’s evidence. In this case, having regard to her evidence, I am satisfied that the IAA files prepared and carefully curated by Ms Dolman and her team did not include the prejudicial information about the applicant or court decisions which referred to the prejudicial information. I infer from Ms Dolman’s evidence that if the Reviewer was exposed to or had access to the prejudicial information, it was other than through the electronic files prepared and provided by the IAA.
Was there apprehended bias?
In Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 (the Full Court decision) the Full Court dismissed the Minister’s appeal of the Federal Circuit Court decision. In his Honour’s reasons for judgment, Griffiths J referred to the prejudicial information as including that the applicant “had been charged … with assaulting a female in indecent circumstances while being aware that the person was not consenting”. I am satisfied that is prejudicial material which was capable of consciously or subconsciously influencing a decision-maker and the decision-making process. The Minister conceded as much.
Using the vernacular adopted in the judicial review hearing, there is certain information which is highly prejudicial in the sense that “once seen, it simply cannot be unseen”. The applicant in this case contends that the Full Court judgment contains allegations of criminality which falls squarely into that category. The applicant submits that the prejudicial information about him is of a type which a fair-minded lay observer might well conclude could subconsciously affect the decision, if known to the decision-maker.
The applicant submits that “because it cannot be unseen” it really does not matter how the information came to be known to the decision-maker. I have found above that it was not included in the material provided in the IAA files, giving rise to the inference that the Reviewer became aware of it in some other fashion. One can only assume that the earlier proceedings were made known to the Reviewer in discussions with other IAA staff or reviewers or that the Reviewer of her own accord, perhaps motivated by curiosity, sought out the earlier judgments. Given that those judgments were published and publicly accessible (albeit under pseudonyms), that would have been a relatively easy thing to do.
In my view a fair-minded lay observer would suspect, with some level of confidence, that the Reviewer probably read the judgments. Common sense and human experience would support that suspicion. It is unlikely the Reviewer would have gone to the judgments and orders only to construct a historical narrative of how the matter came to the Authority on this occasion. If curiosity led the Reviewer to the judgments, it is likely the same curiosity would have led to those judgments being read and the prejudicial information being exposed - or so, I believe, the fair-minded lay observer would reasonably apprehend.
Moreover, it is likely that the judgments were read at or about the time that the Reviewer undertook her statutory review of the materials provided in the Authority’s file. This increases the risk of any prejudicial information leeching into the subconscious of the decision-maker.
I am satisfied on the material before the court in this case and the inferences reasonably drawn from that material that more likely than not the Reviewer was aware of the Full Court’s judgment and the court’s reasoning, including the observations about the applicant’s alleged criminal offending. I am satisfied that the reviewer became aware other than through the electronic files provided to her by the IAA administrative staff. Ultimately, it is not necessary for a Jones v Dunkel inference to be drawn from the failure by the Minister to call the Reviewer or any other Authority staff members who were involved in the preparation or performance of the review.
Of course, it does not follow that mere awareness by the Reviewer of the Full Court judgment in and of itself gives rise to an apprehension of bias. There are many considerations which might inform the fair-minded lay person’s view, some of which are articulated at [36] of Justice Jagot’s decision in CRS20. Her Honour cautioned at [45] that the question of apprehended bias must be determined on the facts in the totality of the relevant circumstances.
The applicant submits that, at the very least, the summary of previous litigation (which contained the prejudicial but irrelevant information) at [3]-[4] of the Reviewer’s reasons is sufficient to give rise to an apprehension of bias, for the same reasons explained by the Full Court in 2017.
The following matters in my view are likely to be cause for concern by the fair-minded properly informed lay observer and lead to an apprehension that the decision-maker might not bring an impartial mind to bear in the decision-making process:
(1)the earlier decisions relating to the application were of some notoriety, the Full Court decision in AMA16 being the first of a number where the Full Court remitted cases which had been contaminated by a reasonable apprehension of bias;
(2)no matter how the earlier judgments came to the attention of the Reviewer, there is a basis for believing the Reviewer read those judgments with interest and care. For example, the Reviewer noted that the appeal to the Full Court had been initiated by the Minister, a relatively uncommon occurrence, and was aware of the circumstances of the second consent remittal:
(3)furthermore, the earlier judgment of the Full Court expressly concerned the issue of apprehension of bias and identified the irrelevant prejudicial material, the consideration of which had led to judicial error in the earlier review;
(4)applicant parties in judicial review proceedings before the courts are generally identified by pseudonym, whereas fast track reviews by the Authority are undertaken with reference to Department materials which identify applicants by name. Somehow the IAA Reviewer has been able to identify earlier anonymized judgments as being referrable to the application under review;
(5)the Reviewer most likely sought out and accessed the judgments of their own accord. The fair-minded lay observer might well wonder why the Reviewer did this, particularly if that lay observer is informed of the steps taken to keep the information from the reviewer. Whether this was on account of curiosity or because the Reviewer wanted to know the early decisions in order to frame his or her consideration of the review material, is not a matter about which the court has evidence. It does give rise to a strong inference that the Reviewer considered the content of the judgments and had them in mind when reviewing the application;
(6)it is possible but unlikely that the Reviewer learned about the judgments in the ordinary course of keeping up-to-date about legal developments and then drew upon that accumulated knowledge in the course of preparing its reasons. Rather, it is more likely that the Reviewer had access to the earlier judgments at the time of or in the course of undertaking its statutory review function;
(7)there is no evidence that that the Reviewer took any steps to assuage the applicant of any risk of bias. The Authority did not draw the prejudicial material to the attention of the applicant or provide an opportunity to respond to it;
(8)The Authority’s reasons did not clearly and unequivocally explain that any references to prejudicial material in the cited judgments was irrelevant or had been disregarded. The reasons do not reveal that the Reviewer was exposed to what, if any, prejudicial information nor did the Reviewer express any caution about how that information was dealt with in the decision-making process.; and
(9)based on the evidence of Ms Dolman, in the course of preparing the review files the Authority and its staff went to very considerable lengths to ensure that prejudicial material was not included in the files given to the reviewer. A further relevant fact is that Ms Collins of the IAA gave a written assurance to the applicant’s representative that prejudicial material, including the Full Court judgment, would not be included in the review. Imputed with this knowledge, the fair-minded lay observer would conclude that the Reviewer was intended to be to be quarantined from exposure to the prejudicial material. Upon reading paragraphs [3] and [4] of the reasons, the fair-minded lay observer would be left wondering why and how the Reviewer has uncovered the very information from which they were being shielded.
In considering the question of apprehended bias through the prism of the fair-minded lay observer, the nature of the decision-maker is a relevant consideration[30]. I have made due allowance for the fact that the fair-minded properly informed lay observer will likely regard the Authority and its Reviewers as comprising a professional decision-making body which is taken to understand the relevant statutory scheme, the requirements of procedural fairness and the requirement not to be influenced by highly prejudicial material.
[30] Ebner at 343-344; Isbester at 146
Counsel for the Minister submitted a properly informed lay observer should be imputed with an understanding that professional decision-makers are capable of and do routinely put aside irrelevant information. The content of the Full Court judgment was quite clear that the prejudicial material should not be seen or allowed to influence a Reviewer. Accordingly, the Minister submits that on reading the Full Court’s observations, the Reviewer on remittal would have acted upon the very clear mandate from the Full Court not to take the prejudicial material into account and not to have any regard to it.
In CRS20 at [35], Jagot J alluded to the fact that when the fair-minded lay observer is properly informed about the nature and substance of a Part 7AA fast track review, that layperson might not expect the standards of a judicial decision-maker who is routinely presented with, and expected to discard, irrelevant and potentially highly prejudicial material. I respectfully agree with her Honour’s observation.
In my view, the fair-minded lay observer is unlikely to impute to the Authority and its Reviewers the same independence of mind or the same capacity to dispassionately exclude irrelevant or prejudicial material as one would attribute to a judicial decision-maker. In particular, where there is evidence to suggest that the decision-maker independently sought out or has been exposed to information which did not otherwise form part of the materials provided to it, the lay observer is more likely to conclude that the information has subconsciously seeped into the decision-maker’s mind.
In order to succeed on this ground it is not necessary for the applicant to establish that the Authority was in fact biased. Nor is it necessary for this Court to speculate on the likely or actual thought processes of the decision-maker. The court is not required to identify and the applicant is not required to prove what the Reviewer actually did in reaching the decision in question[31].
[31] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [184] per Hayne J
The court might not share the same level of apprehension that the Authority might not bring an impartial and unprejudiced mind to bear on the review exercise. But it is to be remembered that in deciding if the alleged reasonable apprehension of bias is made out, “it is the court’s view of the public view, not the courts own view, which is determinative”[32].
[32] CNY17 at [21]; Webb v The Queen (1994) 181 CLR 41 at [11]
In my view the properly informed fair-minded lay observer would be concerned both by how the information got into the Reviewer’s mind and the possibility of the prejudicial effect of subconscious bias. In circumstances where, as appears here, the Reviewer came to the information not through the departmental or IAA review files, but in some other unexplained manner, the lay observer is likely to be unconvinced that the decision-maker has or can put the information out of their mind. The curiosity which may have led the Reviewer to seek out and read the judgments may fuel a lingering apprehension that the prejudicial information once seen, cannot be unseen by the Reviewer.
If a reviewer has come across information from which they were intended to be shielded, it does not in my view require an overly suspicious mind to speculate about what else the reviewer might have been exposed to or what else the reviewer might have done in the course of the review. For example, a fair-minded lay person might ask rhetorically: “If the decision-maker has googled X, what else might have been googled?”. That is not to say that there is evidence in this case that the reviewer has undertaken searches or enquiries about the applicant – but it serves to illustrate that the suspicion of the fair-minded lay person can be easily triggered. In this case, the reference in the Authority’s reasons to the earlier Full Court judgment, would be such a trigger. This speculation and apprehension in the mind of the fair-minded lay observer has the potential to undermine public confidence in the IAA and is at odds with the appearance and actuality of impartial decision-making.
As in CNY17 and the AMA16 Full Court decision[33], I consider that a fair-minded lay observer might apprehend that the Authority, with knowledge of the prejudicial information, might have formed adverse views of the applicant’s character and, consciously or subconsciously, might have acted upon those adverse views when reaching conclusions about the legal and factual merits of the application.
[33] Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
In my view, the applicant has established that the decision-making process of the Authority was affected by apprehended bias. Because the decision-making was not free of bias, the Authority failed to discharge its statutory task and fell into jurisdictional error. Ground one is made out and the applicant is entitled to the relief sought in his application.
Ground two
Having found jurisdictional error in relation to ground one, it is not strictly necessary for me to determine this further ground. However, in the event that my finding in relation to ground one is found be in error by an appeal court, I will express my opinion in relation to this further ground.
In its reasons, the IAA rejected the Applicant’s protection claim of being imputed with an anti-regime opinion insofar as it was based on the new circumstances of the global outrage caused by the death of the 22-year old Mahsa Amini whilst in the custody of the so-called morality police. In a new statement to the IAA made after the second remittal in October 2022, the applicant referred to this recent unrest in Iran said that he continued to oppose the Iranian government, but “would be too fearful to join protests”[34].
[34] CB 807
At [56] of its reasons the Authority found:
“56.The applicant, in his statement dated 25 October 2022, states that the unrest in Iran has made his fears that he would face persecution as someone who is perceived as anti-religion and anti-Islam even worse. He further states that he continues to oppose the Iranian government but would be too fearful to join protests. I do not accept that he was perceived as anti-religion or anti-Islam while in Iran and I note that, he did not while in Iran and has not while in Australia, engaged in any political or religious activities that may be viewed adversely by the Iranian authorities. I am also not at all satisfied that the applicant has any intention or desire to engage in protests or that he would refrain from doing so for fear of persecution.”
By ground two the applicant asserts that the Authority’s reasoning is irrational and illogical. The applicant contends that the IAA rejected this protection claim based on a finding that he had not previously participated in any protests, including in Australia. But the applicant submits that the rejection of his claim of being perceived as anti-religion or anti-Islam cannot as a matter of logic be based on his lack of engagement in political or religious activities while in Australia. The illogicality arises because the applicant was in detention at the time the most recent anti-authority protest movement emerged and he therefore could not have joined protests had he wanted to.
The Minister submits that there is no substance to this ground. The Minister submits that when read fairly and as a whole, the rejection of the applicant’s claim for protection in [56] of the reasons, was a rejection based on the applicant’s history of having not participated in protests in Iran when he lived there and in Australia prior to his detention. In other words, the IAA holistically assessed the applicant’s protest history and engaged in a reasonable and evidence-based forecast of the likelihood that he would engage in such activity in the future.
The Minister also submits that this ground is based on the false premise that the Authority was prognosticating only on the likelihood of the applicant engaging in protests about the young woman’s death. The Minister says a plain reading of [56] of the reasons reveals a wider frame of inquiry for an assessment of the applicant’s present intentions.
Consideration
An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn[35].
[35] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ)

A “decision might be shown to be affected by jurisdictional error if … there is no logical connection between the evidence and the inferences drawn … [or] there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion”[36].
[36] MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 [22] (Besanko, Farrell and Thawley JJ)
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 the Court said at [47]:
“[…] [F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”.”
The threshold for jurisdictional error on the grounds of illogicality or irrationality is high[37] and the decision-maker’s reasons should not be read “with an eye keenly attuned to the perception of error”[38].
[37] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]-[34]
[38] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)
Reasonable minds might differ about the conclusions reached by a decision-maker, but if the material before the decision-maker is rationally capable of supporting the conclusion reached there will be no error. True irrationality must be shown. It is not sufficient that the Court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made[39].
[39] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [35]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ
The applicant claims to fear persecution on account of being someone who is perceived as anti-religion and anti-Islam. He claims that the recent incident involving the young woman and escalation of violence have made those fears worse. He claims that by reason of those fears he would be too fearful to join protests.
I see no error of logic or lack of rational thought in the conclusion reached at [56] that the applicant, based on past history, is unlikely to engage in protests because of his fear of persecution. It was entirely rational for the Authority to assess the applicant’s claim of being too fearful to join protests against his history of protesting in the past. He has no such history of protesting in Iran or in Australia. Nor did the Authority accept that the applicant was perceived as being anti-religion or anti-Islam. It strikes me as inherently logical for the Authority to then express a lack of satisfaction that the applicant had any intention or desire to engage in protest activity.
The applicant has not demonstrated error. Ground two must be rejected.
DISPOSITION
For the reasons set out in this judgment I am persuaded that the decision of the Immigration Assessment Authority made on 5 December 2022 was affected by apprehended bias and therefore jurisdictional error.
The decision of the IAA will be quashed and the matter remitted to the Authority to be heard and determined in accordance with law. For the avoidance of doubt I consider it likely that the Authority risks further error if any new Reviewer is exposed to any judgments pertaining to AMA16 and any references to prejudicial material therein.
The Minister should pay the applicant’s costs to be agreed or in default of agreement to be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

I certify that the preceding one hundred and thirty-nine (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 7 February 2024

File number:	MLG 45 of 2023
Judgment of:	JUDGE FORBES
Date of judgment:	7 February 2024
Catchwords:	MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether decision affected by apprehended bias – where the review was on remittal – nature of Part 7AA fast track review process - whether reference in decision to previous judgments exposed the reviewer to prejudicial material about the applicant – where evidence called to explain preparation of review materials – whether failure to call IAA reviewer gives rise to Jones v Dunkel inference – whether Jones v Dunkel applicable to decision-makers – whether fair-minded lay observer would apprehend conscious or subconscious bias – relevant considerations – whether reasons illogical or irrational - judicial error established
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 60 Migration Act 1956 (Cth) s 473CB, 473CC, 473DB, 473DD, 473FA, 473JA, 473JE Public Service Act 1999 (Cth)
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] 269 CLR 439 AMA16 v Minister for Immigration and Border Protection [2017] FCCA 303 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 Burgess v Minister for Immigration and Border Protection [2018] FCA 69 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 CNY17 v Minister for Immigration and Border Protection; (2019) 268 CLR 76 CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (1989) 217 ALR 121 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 DPT17 v Minister for Home Affairs [2019] FCA 872 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Herijanto v Refugee Review Tribunal [2000] HCA 16 Irving v Minister for Immigration, Local Government and Ethnic Affairs (1993) 115 ALR 125 Isbester v Knox City Council (2015) 255 CLR 135 Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 Muin v Refugee Review Tribunal [2002] HCA 30 MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 Pattanasri v Minister for Immigration, Local Government & Ethnic Affairs (1993) 34 ALD 169 Plaintiff 174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 SZQVI v Minister for Immigration & Citizenship [2012] FCA 1026 Webb v The Queen (1994) 181 CLR 41
Division:	Division 2 General Federal Law
Number of paragraphs:	143
Date of last submission/s:	9 October 2023
Date of hearing:	25 September 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Guo
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondents:	Mr Yuile
Solicitor for the Respondents:	Clayton Utz

MLG 45 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AMA16 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	7 FEBRUARY 2024