AWS25 v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 869
•6 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWS25 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 869
File number: PEG 25 of 2025 Judgment of: JUDGE LADHAMS Date of judgment: 6 June 2025 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to seek judicial review of the Administrative Appeals Tribunal (Tribunal) decision – extension of time granted
MIGRATION – application for judicial review of a decision of the Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal decision was affected by apprehended bias – jurisdictional error established – writs issued.
Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 48A, 473DB, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 29.05
Cases cited: BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 328
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57
Doan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 71
EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455; [2021] FCAFC 24
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 21 May 2025 Place: Perth Counsel for the Applicant: Mr T Lettenmaier (pro bono direct access Counsel) Counsel for the First Respondent: Mr J Wherrett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections 9 June 2025 In the catchwords “writs iwwued” has been corrected to show “writs issued”. ORDERS
PEG 25 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWS25
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JUNE 2025
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time within which the applicant may file an application for judicial review of the decision of the Administrative Appeals Tribunal made on 10 June 2024 is extended to 22 January 2025.
2.A writ of certiorari issue to quash the decision made by the Administrative Appeals Tribunal on 10 June 2024 (case number 2408529).
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the application for review according to law.
4.The first respondent is to pay the applicant’s costs fixed in the amount of $7,000, and those costs are to be paid directly to the applicant’s pro bono counsel Mr Thomas Lettenmaier.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of India who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed that decision. The applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Migration Act) to file an application for judicial review of the Tribunal decision.
If the extension of time is granted, the sole ground advanced by the applicant in the judicial review application asserts that the Tribunal decision is affected by apprehended bias because the Tribunal had prejudicial and extraneous information before it.
For the reasons explained below, I have decided to extend the time for the applicant to file the judicial review application and, upon considering the substantive judicial review application, I have found that the applicant has established his apprehended bias ground.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 5 December 2023 the Minister lifted the bar that applied under s 48A of the Migration Act for a period of seven days. This allowed the applicant to make an application for a protection visa and applicant applied for a protection visa on 11 December 2023. The applicant’s claims for protection were primarily based on a fear of harm from a forced marriage and the applicant’s subsequent separation from his former wife.
At the time the applicant applied for a protection visa he also applied for an associated bridging visa. On 13 December 2023 the applicant attended an interview with officers of the Minister’s Department in relation to his bridging visa application. No transcript of that interview is available but the interviewer’s notes from that interview are set out in the court book.
On 14 December 2023 a delegate of the Minister refused to grant the applicant a bridging visa.
The applicant subsequently attended an interview with an officer of the Minister’s Department on 7 March 2024 to discuss his claims for protection.
On 11 April 2024 a delegate of the Minister refused to grant the applicant a protection visa. The applicant made an application to the Tribunal on 17 April 2024 for merits review of the delegate’s decision.
The applicant attended a hearing convened by the Tribunal on 24 May 2024 to give evidence and present arguments in relation to the issues arising in the review.
On 10 June 2024 the Tribunal affirmed the delegate’s decision.
SUMMARY OF THE TRIBUNAL DECISION
It is unnecessary, in the context of the application before the Court, to provide a detailed summary of the Tribunal decision.
In short, the Tribunal:
(a)accepted that the applicant was married to a particular person (first wife) in an arranged marriage and that they were divorced in 2017;
(b)based on concerns regarding the applicant’s credibility, did not accept that the applicant was ever previously harmed, or threatened with harm, by his first wife’s uncles or brothers and did not accept that the applicant’s first wife’s family would seek to seriously harm him if he were returned to India;
(c)did not accept that the applicant faced a real chance of serious harm for any reasons related to his marriage to and subsequent divorce from his first wife;
(d)did not accept that any fake dowry charges had been levied against the applicant and did not accept that the applicant would face a real risk of serious harm arising out of any fake dowry charges;
(e)found that the applicant did not face a real chance of serious harm due to having a child with a woman in Australia who is not Indian or Brahmin caste, or due to having married an indigenous Australian;
(f)was satisfied that the applicant did not face a real chance of serious harm as a Hindu who eats beef;
(g)accepted that the applicant, if he were returned to India, would be separated from his wife, child and step-children, but did not consider that this would involve serious harm; and
(h)was prepared to accept that the applicant had suffered from anxiety and depression and may experience anxiety and depression if he is returned to India, but did not have any evidence before it to suggest that the applicant would be unable to obtain treatment for any mental health difficulties in India or any evidence as to how the applicant’s mental health manifests or whether the manifestation of any underlying condition would be such to expose him to harm.
Based on these findings, and a cumulative consideration of the applicant’s claims, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of s 5J(1) of the Migration Act. The Tribunal therefore was not satisfied that the applicant was a refugee within the meaning of s 5H(1) of the Migration Act and concluded that he did not meet the refugee criterion in s 36(2)(a) of the Migration Act.
In considering the complementary protection criterion, the Tribunal expressed the view that being separated from one’s children, self-harm, harm from mental illness arising from one’s removal to their home country and not intentionally inflicted by others and lack of available medical treatment are not matters that amount to ‘significant harm’ as that term is exhaustively defined in the Migration Act. The Tribunal otherwise relied on the finding of facts it made in considering the applicant’s refugee claims and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the being removed from Australia to India, there was a real risk that the applicant would suffer significant harm. The Tribunal therefore found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.
APPLICATION BEFORE THE COURT
Pursuant to an amended application filed on 12 May 2025 the applicant raises the following grounds in relation to his application for an extension of time:
1. The proposed substantive application is meritorious.
2.The substantive application relates to a protection visa and the potential consequences for the applicant are very serious.
The amended application raises the following ground in relation to the proposed judicial review application:
The Tribunal’s decision was affected by apprehended bias because it had prejudicial and extraneous information before it.
Particulars
(a)The Tribunal had before it interview notes and notice of decision in relation to the refusal to grant the applicant a bridging visa E which contained:
i.information indicating that the applicant had criminal convictions and charges and non-compliance with visa conditions; and
ii.adverse findings and comments by a delegate of the Minister in relation to the applicant and his credibility.
(b) That information was prejudicial and extraneous to the review.
(c) The Tribunal:
i.did not disclose that information to the applicant or disclaim reliance on it; and
ii. made adverse credibility findings against the applicant.
(d)In the circumstances, a reasonable fair-minded lay observer might apprehend that the Tribunal might have been subconsciously influenced by the prejudicial information in making its decision on review.
The evidence before the Court comprises:
(a)an affidavit affirmed by the applicant on 17 July 2024 and filed on 22 January 2025;
(b)the court book filed on behalf of the Minister on 29 April 2025 (exhibit 1); and
(c)an email chain that included email correspondence between the applicant and the Court on 18 and 19 November 2024 (exhibit 2).
The applicant was represented in this proceeding by Mr Lettenmaier of Counsel, who became involved in this matter after the Court issued a pro bono referral certificate. The Court thanks Mr Lettenmaier for his willingness to represent the applicant in this matter pursuant to the pro bono referral.
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
Relevant considerations
Section 477(2) of the Migration Act allows the Court to extend the time within which the applicant may file an application for judicial review of the Tribunal decision if the applicant makes an application for an extension of time in writing and if the Court considers that it is necessary in the interests of the administration of justice to grant the extension of time.
The factors that the Court may take into consideration in deciding whether it is necessary in the interests of the administration of justice to grant the extension of time are not prescribed, but the Court will usually take into account considerations such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48].
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Katoa) the majority of the High Court explained at [12] that:
(a)the focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice; and
(b)the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
Length of the delay
The Tribunal made its decision on 10 June 2024. Pursuant to s 477(1) of the Migration Act, the application for judicial review, to be made within time, needed to be made within 35 days of the date of the Tribunal decision, namely, by 15 July 2025. The applicant did not make any application by this date.
There is a potential issue in this matter relating to when the application was made, within the meaning explained in EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514 (EIW20).
The applicant filed his application for an extension of time for judicial review on 22 January 2025. At the very latest, the application was made on this day. If his application was made on this date, the length of the delay is approximately six months.
Exhibit 2 is an email chain that refers to communications between the applicant and the Court’s Registry on 18 and 19 November 2024. It is possible, having regard to EIW20, that the applicant made an extension of time or a judicial review application of some description on 18 November 2024. If the application was made on 18 November 2024, the length of the delay would be approximately four months. Counsel for the applicant submitted that the Court would need to make a finding about when the application was made but emphasised that the applicant does not contend that the actual date of filing is earlier than 22 January 2025.
I have insufficient evidence before me to conclude on the balance of probabilities that the application was made on 18 November 2024. As best as I can ascertain from exhibit 2, the applicant emailed himself at 5.06am on 18 November 2024 in an email with the subject line ‘Emailing federal court.pdf’. The only apparent text in the email reads ‘Federal Court 2024’. This email appears to have been forwarded to the Perth Registry email address at 5.15am on 18 November 2024, but the only text in the body of the email reads ‘Hii’. A staff member from the Perth Registry responded to the applicant’s email at 8.31am on 18 November 2024. That email read, in substance:
I refer to the 2 emails the Perth registry has received with the same application attached to each email.
Please provide the full AAT/ART decision.
On page 1 of the application form, please put your family name in the family name box and first name in the first name box.
As you are the only applicant please remove the words in the 2nd applicant section.
Also the documents are signed and dated back in July, have you sent in this application before?
The applicant responded on 19 November 2024 (reproduced without alteration):
No sir I didnt sent this file before I was under lot of depression……. As well as bectaria in my chest (Mycobacterium) and been suffering from this past over year and half……
The application that was apparently attached to the original emails is not in evidence before the Court. While it appears that the applicant did attempt to file some application on 18 November 2024, the Court is not able to ascertain whether it was an application for judicial review of the same decision the subject of the application presently before the Court. I acknowledge that the application that was eventually filed in January 2025 was also dated in July 2024. However, the concerns raised by Registry staff in relation to putting names in boxes and removing words in the second applicant section do not appear to apply to the application that was filed in January 2025. It therefore would appear that the document actually filed in January 2025 was not the same document that was provided to the Registry in November 2024. That is not fatal to a finding that an application was made in November 2024. However, in the absence of any evidence that the document provided in November 2024 related to the Tribunal’s decision of 10 June 2024, I cannot conclude on the balance of probabilities that the applicant made an application on 18 November 2024.
I therefore find that the application was made on 22 January 2025, with a delay of approximately six months. This delay is substantial but not extreme.
For the avoidance of doubt, and noting that a Court can misunderstand its jurisdiction if it misunderstands the length of the delay (see CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57 at [57]-[60]), my conclusion and reasoning on the extension of time application would be same if I am wrong in my finding about the date the application was made and the application was instead made in November 2024.
Explanation for the delay
There is minimal explanation for the delay in this matter. Rule 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) requires that, if an extension of time is sought, an application for a remedy to be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act must be supported by an affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension. The applicant has not filed any affidavit in this proceeding that explains the delay in filing the application or that explains why it is necessary in the interests of justice for the Court to grant an extension of time. Counsel for the applicant read the applicant’s affidavit affirmed on 17 July 2024 and filed on 22 January 2025 ‘to reflect the necessity for an affidavit to be filed in an extension of time under the rules’. However, the substantive paragraphs of that affidavit simply reflect that the applicant is initiating a matter in the migration division and do not in any way offer any explanation as to the timing of the application or the interests of the administration of justice.
The failure to provide an affidavit that addresses the matters required by r 29.05(2)(c) of the GFL Rules is not fatal to the applicant’s case, as the Court can dispense with the need to comply with the rules (although it has not been asked to do so in this case).
The applicant submitted that he prepared the application in July 2024 and emailed it to the Registry in November 2024, and this shows that he took steps to seek review. Further, the applicant submitted that there is some evidence that the applicant was unwell during the relevant period.
I do not accept that the applicant has provided an adequate explanation for the delay in this matter. While the application provided to this Court is signed and dated in July 2024, there is no further evidence to confirm that that was when it was prepared. Further, there is no evidence to explain why the application was not provided to the Registry in or around July 2024 if that is when it was prepared. I have indicated above that I have insufficient evidence before me to find that the application emailed to the Registry in November 2024 related to the Tribunal decision of 10 June 2024. Even assuming, for the purposes of considering the explanation of the delay, that the application provided in November 2024 did seek review of that decision, there is no explanation as to why it took four months beyond the 35 day time limit to provide it, or a further two months after that to provide a completed application to the Court.
The applicant has not established, by evidence, that he had health issues that explain the delay in filing the application. The Tribunal was prepared to accept that the applicant suffered from anxiety and depression but found that he no longer takes medication and had not seen a psychologist for more than two years. Exhibit 2 shows that the applicant represented to the Court on 19 November 2024 that he had depression and bacteria in his chest. However, this assertion was not supported by medical evidence, was not made under oath, and does not in any way explain why it prevented the applicant from filing his application in a timely way.
The absence of an adequate explanation for a delay of six months weighs against the grant of an extension of time.
Prejudice to the Minister
The applicant submitted that the Minister suffers no prejudice if the extension of time is granted, whereas the applicant would suffer prejudice if the extension of time were refused.
The Minister has not asserted that he would face any specific prejudice.
I accept that the Minister would not suffer any prejudice from the grant of an extension of time beyond the general public interest in the finality of litigation.
The mere absence of prejudice does not, however, of itself, warrant the grant of an extension of time: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344 at 349.
Merits of the proposed substantive application
In considering whether to grant an extension of time, the Court often considers the merits of the proposed application for judicial review at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63]. The Court is not, however, required to confine its consideration of the merits to an assessment at a reasonably impressionistic level in every case: Katoa at [17]-[19], [49]. As the majority said in Katoa at [18] (footnotes omitted):
However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
In the present case, the applicant relies on a sole ground of application asserting that the Tribunal decision is vitiated by apprehended bias, based on there being extraneous and prejudicial material before the Tribunal. Jurisdictional error on this basis has been recognised in other cases, most notably by the High Court in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17).
Considering the matter at a reasonably impressionistic level, I accept that there was material before the Tribunal that was prejudicial to the applicant and extraneous to the issues to be determined by the Tribunal. The prejudicial material was contained in the interview notes from the bridging visa interview that the applicant attended with officers of the Minister’s Department on 13 December 2023, as well as the decision in relation to his bridging visa application, and refers to the applicant having criminal charges and convictions, his poor compliance and criminal history, and the opinion that the applicant showed disregard for the seriousness of his offending and evidence on Department systems regarding the applicant’s refusal to acknowledge the full extent of his criminal convictions and which did not support the credibility of his claims.
I also accept that there is a reasonably arguable case that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review, in circumstances where the Tribunal will be presumed to have read the extraneous and prejudicial information and where the Tribunal made adverse credibility findings in relation to the applicant’s evidence.
Whether or not the applicant is able to establish apprehended bias will require a detailed consideration of the specific facts of this matter. For the purposes of considering the extension of time application, I am satisfied that the ground relied on by the applicant is reasonably arguable. This weighs in favour of granting an extension of time.
Conclusion in relation to the extension of time application
The Minister’s position is that the extension of time should be refused because the delay is substantial, there is no adequate explanation for the delay and the underlying application lacks sufficient merit to justify the grant of an extension.
The applicant’s position where the delay is ‘somewhat lengthy’ and there is ‘some explanation’, the delay is not so inordinate to outweigh a compelling substantive application, and that the question of whether the grant the extension of time turns on the merits of the substantive application.
The exercise of the discretion of whether or not to grant the extension of time in the present matter is finely balanced. The delay of approximately six months is substantial, without being extreme, and is not adequately explained, weighing against the grant of an extension of time. On the other hand, the merits of the proposed substantive application are, at a reasonably impressionistic level, arguable, which weighs in favour of the grant of an extension of time. I consider any questions of prejudice to be neutral. On balance, I consider the merits of the proposed substantive application to be sufficiently arguable to warrant the grant of the extension of time, notwithstanding the absence of an adequate explanation for the delay.
I therefore grant the extension of time.
CONSIDERATION OF THE GROUND IN THE JUDICIAL REVIEW APPLICATION
Relevant principles
The ground raised by the applicant alleges apprehended bias on the part of the Tribunal.
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the resolution of the question the Tribunal was required to decide: CNY17 at [56] (per Nettle and Gordon JJ). A finding of apprehended bias will not be made lightly: CNY17 at [56] (per Nettle and Gordon JJ).
In relation to the steps in applying this test, Nettle and Gordon JJ said in CNY17 at [57]-[59] (emphasis added, footnotes omitted):
57. The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker’s impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information. As Deane J said in Webb v The Queen [(1994) 181 CLR 41],in relation to disqualification by extraneous information, “knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias”. Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?
58. In applying the test, “it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made”. It is also necessary to consider “what is involved in making the decision and the identity of the decision-maker”. This draws attention to the fact that the test must recognise “differences between court proceedings and other kinds of decision-making”. The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has “a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]”.
59. Where, however, as here, the statutory context is complex, the fair-minded lay observer at least must have knowledge of the key elements of that scheme. In this case, those key elements, summarised below, are not themselves overly complex. It is necessary to consider the statutory regime.
The principles summarised in CNY17 were also summarised by the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455; [2021] FCAFC 24 (CQZ15).
In CQZ15, the Full Court at [112] addressed the fair-minded lay observer’s knowledge of the statutory framework in relation to decision-making under Part 7 of the Migration and said:
The first matter concerns the key aspects of the statutory framework governing the Tribunal’s decision-making under Part 7 since the fair-minded lay observer is attributed with knowledge of such matters. The fair-minded lay observer is therefore presumed to know that the Secretary is only required to provide documents in the Secretary’s possession or control “considered by the Secretary to be relevant to the review of the decision”: see s 418(3). This observer would also be presumed to know that, as part of its regular administration of the Migration Act, the Tribunal would also be aware of that fact. The fair-minded lay observer would also be presumed to know that the Tribunal would ordinarily treat the Secretary’s notification that s 438(1)(b) applies to information as sufficient for the Tribunal’s purposes. Equally, such an observer would be presumed to know that the Tribunal would have read the Job Details Report to which the notification apparently attached in order to consider the exercise of its discretion under s 438(3)(a), although in this case it would be accepted that, having done so, the Tribunal consciously chose not to have regard to the notified information in reaching its decision. In summary, the fair-minded lay observer can be taken to know that when the Tribunal received the Job Details Report, it was aware the Secretary regarded the Report as “relevant” to its review, and that it would have read the Report to determine whether it should exercise its discretion to have regard to the information in it in reaching its decision on review but that it determined against an affirmative exercise of that discretion.
An assessment of whether there is apprehended bias in a decision must be based on the specific facts of the case before the Court. As Wheelahan J said in BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 328 at [64]:
…it is necessary to bear in mind that the question whether a reasonable apprehension of bias exists is one that is largely factual, and that each case is different. It is therefore not always useful to compare the facts of one case with the facts of another except for the purpose of gaining a better understanding of the principles of law that are involved: see Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503 (Windeyer J).
The information that is said to be prejudicial
The information that is said to be prejudicial appears in two documents:
(a)interview notes in relation to an interview between Department officers and the applicant on 13 December 2023 for the purposes of an application for a bridging visa associated with the applicant’s protection visa application (interview notes); and
(b)the record and notice of decision in relation to the applicant’s application for a bridging visa E, made by a delegate of the Minister (bridging visa decision record).
The interview notes comprise just over two pages. The information in the interview notes that is said to be prejudicial is the record of the applicant’s answer to a question about whether he has a criminal history. The answer is recorded as (emphasis added):
Client [name redacted] stated has a number of criminal charges and convictions ,common assault, multiple convictions for fail to obey order given by an officer, assault occasioning bodily harm, breach of family violence restraining order or violence restraining order. Some drugs fines.
In the bridging visa decision record, in finding that the applicant could not be expected to abide by mandatory conditions without the imposition of a security, the delegate recorded:
Taking into account [the applicant’s] immigration history, poor compliance and criminal history, I am not satisfied that [the applicant] will abide by the conditions that will be imposed on this Bridging E visa if it were granted see full assessment -See attachment A
In the attachment to the bridging visa decision record, under the heading ‘Criminal Facts’ the delegate recorded:
[The applicant] has an extensive criminal history dating back to 2010. To date he has not received any terms of imprisonment only infringements.
07/09/2021 – Midland MC – 7915/19
1 x Common Assault in Circumstances of Aggravation or racial Aggravation
Fined; $2000Extensive criminal history
(06/07/2020 – 03/07/2018)
Breach of FVRO of VRO; Breach of protective bail conditions; Unlawfully possessed a Controlled or prescription drug; Damaging property; Possess a Prohibited Drug (Cannabis); Breach of Bail undertaking; 2 x Disorderly behaviour in public; Obstructing public officers; Common Assault; 2 x Fail to obey order given by a public officer; Assault occasioning bodily harm; Breach of Bail; Multiple Traffic charges. Penalties – Monetary Fines only.
Under the heading ‘Assessment’, the delegate recorded:
[The applicant’s] previous non-compliance with immigration regulations and visa conditions which demonstrated in the past indicates a level of unacceptable risk to the immigration therefor I am not satisfied [the applicant] has provided sufficient evidence that he will abide by condition 8101.
…
With regard to condition 8564 (not engage in criminal activity), I have given consideration to [the applicant’s] extensive criminal history and repeated non-compliance with Australian law. I have considered that [the applicant] has been charged and convicted of a number of criminal offences dating back as far as 2010. These convictions include damaging property, possess a prohibited drug (cannabis), multiple convictions for breach of bail undertaking, disorderly behaviour in public, obstructing police officers, common assault, multiple convictions for failed to obey order given by an officer, assault occasioning bodily harm, breach of family violence restraining order or violence restraining order, driving with prescribed illegal drugs, driving under the influence of alcohol, no authority to drive - suspended. He was also charged by the Midland Magistrate Court, WA for Common Assault in Circumstances of Aggravation or Racial Aggravation.
These charges have all resulted in guilty convictions, given his repetitive offending while in the community, and his disregard for the seriousness of his offending, as well as the evidence on departmental systems regarding his refusal to acknowledge the full extent of his criminal convictions, I take into account [the applicant’s] extensive immigration history, non-compliance with visa conditions and his criminal history, which does not support the credibility of his claims. [The applicant’s] adverse immigration history, seriousness of his offences indicate he has a complete disregard for Australian law. I am not satisfied he will comply with condition 8564.
It can be seen from these extracts that the extraneous prejudicial information includes references to the applicant’s poor compliance with visa conditions and his criminal history (including the nature of the offences and that the penalty for the offences has included fines but not incarceration), the view that the applicant had disregard for the seriousness of his offending and that there was evidence on the departmental systems regarding his refusal to acknowledge the full extent of his criminal convictions.
There is also the opinion of the delegate that the applicant’s non-compliance with visa conditions and his criminal history do not support the credibility of the applicant’s claims. There is some dispute between the parties as to how this opinion should be interpreted. I address this below.
The submissions advanced by the parties
At a high level of generality, the applicant’s case is that the Tribunal decision is affected by apprehended bias on the basis that:
(a)the applicant’s general criminal history, his non-compliance with visa conditions and adverse findings by a delegate in relation to a different visa application were extraneous and could not have borne on the substantive issues before the Tribunal and were ‘highly prejudicial’ to the applicant; and
(b)the prejudicial information might have unconsciously encouraged the Tribunal to form an adverse view of the applicant’s character and credit and that he is a person who should not be granted a visa and should not be believed.
The applicant submitted that the latter issue is particularly relevant given that the Tribunal made adverse credibility findings against the applicant.
In submitting that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question before it, the applicant made a number of submissions about knowledge that should be attributed to the fair-minded lay observer. Many of these were accepted by the Minister.
Both parties accept, and the Court agrees, that the fair-minded lay observer can be taken to know the following matters:
(a)the Tribunal would have read the interview notes and the bridging visa decision record;
(b)the Secretary regarded the interview notes and the bridging visa decision record as relevant to the review, given that this is the basis upon which the documents were provided to the Tribunal under s 418(3) of the Migration Act;
(c)the information in the interview notes and the bridging visa decision record was not relevant to the issues to be determined by the Tribunal;
(d)the Tribunal did not notify the applicant of the prejudicial information or disclaim reliance on it; and
(e)the Tribunal may have read the information in the interview notes and the bridging visa decision record prior to sending the hearing invitation to the applicant on 16 May 2024 advising that it had considered the material before it but was unable to make a favourable decision on that information alone.
I would add that I also accept the applicant’s submission that the fair-minded lay observer can be imputed to have the knowledge of the statutory scheme described in CQZ15 at [112] (extracted above at [54]).
In addition to these matters, the applicant submits that the fair-minded lay observer would know that the interview notes were not a transcript and it might be difficult for the applicant to challenge them and would understand that the Tribunal made adverse credibility findings against the applicant and this was a significant reason for its decision to refuse to grant the applicant a protection visa.
The Minister’s position is that the Tribunal decision is not affected by apprehended bias because:
(a)the information was not highly prejudicial;
(b)there was nothing anomalous about the circumstances in which the information was obtained by the Tribunal;
(c)the relevant decision was made by the Tribunal rather than the Immigration Assessment Authority; and
(d)the Tribunal’s assessment of credibility was carefully and clearly explained.
Resolution of the issues in dispute between the parties
I address the issues on which the parties do not agree before making findings in relation to the application of the test for apprehended bias.
The prejudicial information
Both parties accept that the information is prejudicial, but there is disagreement about the level of prejudice, with the applicant describing the information as ‘highly prejudicial’ and the Minister disputing that characterisation. Counsel for the Minister in his oral submissions described the information as ‘somewhat prejudicial’.
The relevance of this issue to the Court’s task is explained in two authorities cited in the Minister’s written submissions.
In MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, Kiefel CJ, Gageler, Keane and Gleeson JJ said at [72] that (emphasis in original):
… a question for a court on judicial review in an appropriate case can still remain whether the information was so “highly prejudicial” to the applicant for review that “the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the [Tribunal] may have been affected by [the information] albeit subconsciously”.
In Doan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 71, Anderson J said at [60]:
Where apprehended bias is alleged, as in this case, on the basis of extraneous information, it is necessary for the Court to examine all the circumstances of the case to determine if the information was so “potent” that it might lead a fair-minded lay observer to apprehend a lack of impartiality.
In making submissions on the level of prejudice in the extraneous information before the Tribunal, both parties made submissions regarding the findings made by courts about the prejudicial nature of information in other cases and submissions were made about the extent to which other cases are capable of providing guidance, given that apprehended bias cases are necessarily fact specific. I have had regard to the parties’ submissions in this regard, without setting them out in any detail.
Both parties accept that information about criminal convictions will not necessarily give rise to apprehended bias.
The Minister submitted that the reference to the applicant’s criminal history as ‘extensive’ was not necessarily sufficient to give rise to apprehended bias, noting that in BMT19, there was no apprehended bias even though the criminal offending was described as ‘extremely serious’. The Minister submitted that in the present case, the information specifically recorded that the applicant had not received any terms of imprisonment and instead had received only infringements or monetary fines, and that this shows that the offences were of a lower level of seriousness and therefore the information was less prejudicial than information referring to crimes attaching a sentence of imprisonment would have been.
The applicant submitted it was open to the Court to find that the extraneous information was highly prejudicial and reiterated that is not merely references to the applicant’s criminal convictions that gives rise to the apprehension of bias. Counsel for the applicant submitted it was several matters, including references to charges, the delegate’s adverse finding based on that information and references the non-compliance with visa conditions. Counsel for the applicant submitted that the Court cannot find on the basis of the sentences imposed alone that a fair-minded observer would consider that the convictions were lower level. This was said to be because the nature of the offending cannot be gleaned by the sentence alone and, in any event, there is no sentencing remarks to explain why the particular penalty was imposed for each offence. Counsel for the applicant submitted that one needs to look at the nature of the charges which, in this case, include violence, drugs and public order offences. Counsel for the applicant submitted that the delegate’s characterisation of the record as ‘extensive’ was also significant in arriving at the conclusion that the information is highly prejudicial.
The extraneous information in the present case includes the delegate’s assessment of the applicant’s credibility set out in the bridging visa decision record. General adverse credibility findings have been found to give rise to jurisdictional error in other cases, including CQZ15. The Minister submitted that there was nothing in the present case that was similar to the Full Court’s particular concern in CQZ15, which was an authoritative statement that there was substantial evidence available to support integrity concerns without any explanation about what that evidence was of the exact nature of those concerns. The Minister submitted that the reference to the applicant’s history not supporting the ‘credibility of his claims’ in the bridging visa decision record, when read in context, shows that the claims that were determined not to be credible with those referred to in the first full paragraph of that page, being the claims that the applicant had changed and will comply with the law, and that he has learned from his mistakes. The Minister submitted that the delegate’s finding was a specific finding that the past credibility of the applicant undermined his claim that he would not engage in criminal conduct in the future, rather than being a general finding about the applicant’s credibility. The Minister also submitted that, to the extent the delegate’s comments that the applicant had refused to acknowledge the full extent of his criminal convictions demonstrate the delegate had found the applicant had not been entirely honest, it was limited to this topic and was not a finding that the applicant was a dishonest person generally.
While I would not characterise the extraneous information in the present case as ‘highly prejudicial’, it is sufficiently prejudicial that, when considered with other relevant factors, I consider that a fair-minded lay observer could not dismiss the possibility that the Tribunal might have been subconsciously affected by the information.
I acknowledge that the information is not as extensive and does not involve the same degree of prejudicial opinion and innuendo as that considered in CNY17, and that the nature of the offences committed by the applicant are not as prejudicial as the information about child sexual offences that was addressed in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29 (FSG17). I also acknowledge that the delegate’s credibility finding is of a different nature to the one that was of concern in CQZ15, to the effect of an unexplained statement that there was substantial evidence available to support integrity concerns.
However, the nature and extent of the offending referred to in the interview notes and the bridging visa decision record, together with the delegate’s characterisation of the offending as ‘extensive’, is relevant to the views that the fair-minded lay observer might form about the potential for the information to subconsciously influence the Tribunal. The offences include assault-based offences, breaching violence restraining orders, drug possession offences and public disorder offences. Even though the applicant did not receive custodial sentences for any of these offences, the nature and extent of them might cause a find-minded lay person to consider that they subconsciously influenced the Tribunal’s views on the applicant’s credit. Further, there are some conclusory statements of the delegate, the basis of which is not fully explained. These include the opinions that the applicant refused to acknowledge the full extent of his offending and that he has shown disregard for the seriousness of his offending.
I acknowledge the merit in the Minister’s submission that the credibility finding of the delegate, namely that the applicant’s history did not support the credibility of his claims, relates to the applicant’s claims to have changed, that will comply with the law, and that he has learned from his mistakes. While this may be the most direct reference, the observation of the delegate may also reasonably be seen by a fair-minded lay observer to be relevant to the applicant’s credibility more generally. Even if the credibility finding is confined in the way suggested by the Minister, the extraneous information overall is, as I have concluded above, sufficiently prejudicial that a fair-minded lay observer could not dismiss the possibility that the Tribunal might have been subconsciously affected by the information.
The circumstances in which the information was provided to the Tribunal
This issue was raised by the Minister having regard to the judgment in BMT19, where Wheelahan J said at [60]:
In CNY17 and FSG17, it might have been open to attribute to the fair-minded lay observer a real sense of disquiet about how or why the impugned information in those cases came to be provided to the Authority, which comprised reviewers engaged under the Public Service Act 1999 (Cth): Migration Act, s 473JE(1). However, no such sense arises in this case. There was no apparent anomaly in the Secretary providing the appellant’s visa application to the Tribunal pursuant to the obligation under s 418(3) of the Act. Further, I do not consider that the evidence supports any perception of irregularity in the Secretary providing the fingerprinting information to the Tribunal.
The Minister submitted that in this case there was no apparent anomaly in the Secretary providing documents relating to the applicant’s bridging visa application to the Tribunal under s 418(3) of the Migration Act, noting that the application for a protection visa and the application for a bridging visa were connected. The Minister submitted that there was nothing suspicious or unusual about documents relating to the associated application been provided to the Tribunal in connection with the review of the decision of the primary application. The Minister also noted that, in the present case, the applicant can be taken to be aware of his own criminal history and that he mentioned some of his convictions in his visa application and to the delegate at the interview. Therefore, there is not the concern present in CNY17 that the relevant information had not been disclosed by the visa applicant in his visa application and it was, in some cases, information of which the visa applicant was not actually aware.
Counsel for the applicant submitted that nothing turns on this point. The applicant did not make any contention that the provision of the information was anomalous in this matter and accepted that the documents were provided in the ordinary matter under the statutory scheme that applied at the time. What the applicant says instead, which is accepted by the Minister, is that it was the information in those documents it was irrelevant and extraneous and that is all they need to establish for this aspect of the bias test.
I accept that there was nothing anomalous in the provision of the interview notes and the bridging visa decision record to the Tribunal and that the concern addressed in CNY17 does not arise in the present case. Nevertheless, I do consider that this is determinative. That there was nothing anomalous in the provision of the information does not mean that there cannot be any apprehended bias.
The identity of the decision-maker
The Minister placed significance on the decision-maker in this case being the Tribunal, rather than the Immigration Assessment Authority, which was the decision-maker in CNY17 and FSG17.
This submission again is based on a finding of Wheelahan J in BMT19, where his Honour said at [62]-[63]:
62. It is also important to bear in mind that the Tribunal member was a professional decision-maker, albeit not a judicial decision-maker. The law seeks to insulate some lay decision-makers, such as jurors, from certain irrelevant and prejudicial information. Even then, any injustice that might be caused by the reception of irrelevant and prejudicial information may be cured by directions to the jury: see, eg, Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; 54 CLR 200 at 211 (Latham CJ) and 217 (Dixon J). The fair-minded lay observer would view a professional decision-maker such as a member of the Tribunal differently to a lay decision-maker. Unlike a jury, where the trial judge rules on admissibility, a Tribunal member will be expected to be capable by reason of training and experience of separating the relevant from the irrelevant in coming to a decision. This is one attribute of a judicial decision-maker which, in the present circumstances, it is appropriate to ascribe to a member of the Tribunal and which distinguishes the professional decision-maker from the lay decision-maker. As the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [140] –
“Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding.”
63. In this respect, the position of the Tribunal is also different from that of the Authority, which is required to review the referred decision “by considering the review material provided to the Authority under section 473CB”: s 473DB(1).
The Minister submitted that this shows that the decision-making capabilities of the Tribunal should be taken into account in assessing whether the particular information at issue gives rise to an apprehension of bias. The Minister submitted that in the present case it can be expected that the Tribunal would understand that a person with a criminal record may nevertheless have a valid protection claim entitling them to a protection visa. The Minister submitted that that is particularly so in circumstances where the fair-minded lay observer would be taken to know that the Minister, in deciding to lift the bar under s 48A of the Migration Act, had decided that it was in the public interest for the applicant to be permitted to make a protection visa application notwithstanding that the applicant had a criminal history.
Counsel for the applicant submitted that the comments of Wheelahan J in BMT19 apply with equal force to the Immigration Assessment Authority and the main significant difference relied on in previous cases was the significance of s 473DB(1) of the Migration Act which requires the Authority to consider the material provided by the Secretary.
I acknowledge that both the Authority and the Tribunal are professional decision-makers. The critical point, as I see it, in the submissions made by the parties is the knowledge that should be attributed to the fair-minded lay observer in relation to the professional decision-making qualities of the Tribunal. In reaching my decision in this matter I have regard to, and agree with, the comments of Wheelahan J at [62] of BMT19.
The Tribunal’s assessment of the applicant’s credibility
The Minister submitted that the Tribunal’s assessment of the credibility of the applicant’s claims was careful and clearly explained. The Tribunal’s adverse credibility findings were based on inconsistent accounts of the harm that the applicant had allegedly experienced and those inconsistencies were identified with particularity. It was those inconsistencies that were said to cause the Tribunal to have significant doubts about the applicant’s overall credibility.
The applicant did not dispute that the Tribunal’s assessment of the applicant’s credibility was carefully and clearly explained. Rather, the applicant submitted that that was not a complete answer to the proposition that the nature of the information was such that it had an unconscious effect on the Tribunal. That the Tribunal’s reasons were carefully explained does not address how the Court can be sure that the Tribunal might not have brought a mind an impartial mind to the ultimate conclusion under the influence of prejudicial information.
There is no doubt that the Tribunal in this matter gave a carefully considered and well-reasoned justification for making adverse credibility findings in this matter. The Tribunal’s approach to credibility was consistent with the requirements of the case law cited by the Tribunal. The Tribunal’s credibility assessment does not refer in any way to the prejudicial information in the interview notes and the bridging visa decision record.
However, I accept the applicant’s submission to the effect that the quality of the Tribunal’s reasons on credibility is not a complete answer to the ground raised by the applicant. The focus of the apprehended bias ground is whether a fair-minded lay observer might reasonably apprehend that the prejudicial information was of a kind that might have subconsciously affected the Tribunal’s approach to its decision-making, and not whether the information did in fact influence the Tribunal’s approach to its task. As the Full Court explained in CQZ15 at [118]:
In the present case, however, while acknowledging that the information in the Job Details Report was in the nature of innuendos and generally unfavourable comment, it was nonetheless information that a decision-maker might find difficult to put out of his or her mind. In other words, a fair-minded lay observer might reasonably consider that the information was of a kind that might subconsciously have affected the Tribunal’s approach to the decision, notwithstanding that it consciously did not have regard to the information. The touchstone for apprehended bias is not the judicial observer but the experience of the reasonably informed and fair minded lay observer, who might well doubt that, having read the prejudicial information in the Job Details Report, the Tribunal would have been able to exclude it from its subconscious mind in assessing the character and credit of the applicant before it.
The fair-minded lay observer would be aware of the Tribunal’s carefully considered credibility assessment in relation to the applicant. However, in the present case, the nature of the information was such that a fair-minded lay observer might reasonably consider that the Tribunal might not have been able to completely put the information out of its mind in approaching its task. A fair-minded lay observer might reasonably consider that the adverse credibility findings made by the Tribunal might have been subconsciously influenced by the extraneous and prejudicial information.
That the Tribunal did not disavow relying on the information
The applicant has placed significance on the Tribunal not including any statement in its reasons to show that it did not rely on the prejudicial information. Counsel for the applicant submitted that, where the reasons are carefully set out, the absence of a disclaimer or explanation as to why the adverse material was not been taken into account and no weight was been placed on it is a conspicuous absence.
Conversely, the Minister submitted that the fact that there was no express statement from the Tribunal that the extraneous information was not taken into account reflects, in the context of an otherwise meticulously prepared decision, that the information simply had no bearing-conscious or subconscious on the Tribunal’s decision.
In my view, if the Tribunal had made an express statement that disavowed any reliance on the prejudicial information, this is something that would have been relevant in considering the views of the fair-minded lay person. However, I do not consider that the absence of such a statement, in the context of the presence matter, is of any material significance one way or the other. In other words, I do not consider that a fair-minded lay person would draw any inference from the absence of a statement that the Tribunal had regard to (consciously or subconsciously), or did not have regard to, the prejudicial information.
Was there apprehended bias in the Tribunal decision?
Taking into account all of the above considerations and the various knowledge that I have imputed to the fair-minded lay observer (which is largely agreed between the parties), I have formed the view that a fair-minded lay person might reasonably apprehend that the Tribunal might not have brought an open mind to the resolution of the question the Tribunal was required to decide. As indicated above, I accept that there was information in the interview notes and the bridging visa decision record that was prejudicial to the applicant and extraneous to the issues to be determined by the Tribunal,. While I do not characterise the information as ‘highly prejudicial’ I have formed the view that it is sufficiently prejudicial, or potent, that a fair-minded lay observer would not dismiss the possibility that it might have subconsciously affected the Tribunal, particularly in relation to the Tribunal’s assessment of the applicant’s credibility and believability. I therefore find that the applicant has established the ground in his application.
CONCLUSION
As indicated above, despite my concerns about the absence of an adequate explanation for the delay in filing the judicial review application, having regard to the merits of the proposed judicial review application, I grant the applicant an extension of time. I have found, in considering the judicial review application, that the Tribunal decision is affected by apprehended bias. The applicant has therefore established jurisdictional error. It is appropriate to issue a writ of certiorari to quash the Tribunal decision and a writ of mandamus to require the Administrative Review Tribunal to determine the review application according to law.
Counsel for the applicant sought costs in the amount of $7,000, payable directly to him as pro bono counsel. I am satisfied that this order is appropriate.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 June 2025
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