CNY17 v Minister for Immigration and Border Protection

Case [2019] HCA 50

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, NETTLE, GORDON AND EDELMAN JJ

CNY17  APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ANOR  RESPONDENTS

CNY17 v Minister for Immigration and Border Protection

[2019] HCA 50

Date of Hearing: 16 October 2019
Date of Judgment: 13 December 2019

M72/2019

ORDER

1.Appeal allowed with costs.

2.Set aside orders 1 and 2 made by the Full Court of the Federal Court of Australia on 21 September 2018 and order 1 made by the Full Court of the Federal Court of Australia on 12 October 2018 and, in their place, order that:

(a)the appeal be allowed with costs; and

(b)orders 1 and 2 of the Federal Circuit Court of Australia dated 8 November 2017 be set aside and, in their place, order that:

(i)the decision of the Immigration Assessment Authority dated 12 May 2017 be quashed;

(ii)the matter be remitted to the Immigration Assessment Authority differently constituted; and

(iii)the first respondent pay the applicant's costs.

On appeal from the Federal Court of Australia

Representation

L G De Ferrari SC with M W Guo for the appellant (instructed by Estrin Saul Lawyers)

G R Kennett SC with A P Yuile for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

CNY17 v Minister for Immigration and Border Protection

Immigration – Refugees ­– Application for protection visa ­– Where Pt 7AA of Migration Act 1958 (Cth) requires Immigration Assessment Authority ("IAA") to review certain decisions to refuse applications for protection visas – Where s 473CB(1)(a), (b) and (d) requires Secretary of Department to give certain material to IAA to conduct review ­­– Where s 473CB(1)(c) requires Secretary to give to IAA any other material Secretary considers relevant to review – Where s 473DB requires IAA to review decision by considering material given by Secretary – Where Secretary gave material to IAA pursuant to s 473CB(1)(c) ­– Where material irrelevant to task of IAA – Where material prejudicial to applicant ­– Where applicant unaware of material ­– Whether jurisdictional error by Secretary –­ Whether jurisdictional error invalidated decision of IAA – Whether apprehended bias.

Administrative law – Judicial review –­­ Procedural fairness – Where s 473FA requires IAA to operate free of bias – Whether apprehended bias.

Words and phrases – "apprehended bias", "bias", "fair-minded lay observer", "fast track reviewable decision", "Immigration Assessment Authority", "impartial", "irrelevant", "irrelevant and prejudicial material", "jurisdictional error", "material", "materiality", "prejudicial", "prejudicial but inadmissible", "procedural fairness", "professional decision maker", "reasonable apprehension of bias", "relevant", "relevant to the review", "required to consider", "review material", "rule against bias", "subconscious bias".

Constitution, s 75(v).
Migration Act 1958 (Cth), Pt 7AA.

  1. KIEFEL CJ AND GAGELER J.   This appeal from a decision of the Full Court of the Federal Court[1] concerns a problem that has arisen in the administration of Pt 7AA…

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AGLC
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Case
[2019] HCA 50
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the review of a protection visa refusal decision by the Immigration Assessment Authority (IAA). The applicant, CNY17, challenged the IAA's decision, alleging jurisdictional error by the Secretary of the Department of Immigration and Border Protection and apprehended bias by the IAA. The core of the dispute involved material provided by the Secretary to the IAA under section 473CB(1)(c) of the *Migration Act 1958* (Cth), which the applicant argued was irrelevant and prejudicial, and that the applicant was unaware of its existence.

The legal issues before the High Court were whether the Secretary's provision of irrelevant and prejudicial material to the IAA constituted jurisdictional error, whether such error invalidated the IAA's decision, and whether the IAA's conduct gave rise to an apprehended bias, contrary to section 473FA of the *Migration Act*. The Court was required to consider the proper order for assessing these grounds of appeal and the application of the test for apprehended bias in the context of the IAA's review process.

The High Court allowed the appeal, quashing the IAA's decision and remitting the matter to the IAA for redetermination by a differently constituted body. The Court reasoned that the rule against bias is a fundamental principle of procedural fairness, designed to ensure that a decision-making process is, and appears to be, fair. The test for apprehended bias focuses on whether a fair-minded lay observer might conclude that the decision-maker might be diverted from the merits of the case, and this assessment does not depend on whether the irrelevant material actually influenced the final decision. The Court found that the Secretary's provision of irrelevant and prejudicial material to the IAA, of which the applicant was unaware, created a reasonable apprehension of bias, thereby constituting a jurisdictional error that invalidated the IAA's decision. The Court emphasised that the consideration of apprehended bias should precede other grounds of appeal, as it can render those other grounds unnecessary.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside orders 1 and 2 made by the Full Court of the Federal Court of Australia on 21 September 2018 and order 1 made by the Full Court of the Federal Court of Australia on 12 October 2018 and, in their place, order that:

(a) the appeal be allowed with costs; and

(b) orders 1 and 2 of the Federal Circuit Court of Australia dated 8 November 2017 be set aside and, in their place, order that:

(i) the decision of the Immigration Assessment Authority dated 12 May 2017 be quashed;

(ii) the matter be remitted to the Immigration Assessment Authority differently constituted; and

(iii) the first respondent pay the applicant's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ GAGELER J NETTLE AND GORDON JJ EDELMAN J
Without requesting new information and without interviewing the referred applicant, the Authority conducts a review which results in the Authority making a decision affirming the decision to refuse the referred applicant a protection visa. Unsurprisingly, given the irrelevance of that material to the review, the Authority's written statement of reasons makes no reference to the irrelevant but prejudicial material given to it by the Secretary.The consequences of the problem for the decision of the Authority The absence of reference to material in the Authority's written statement of reasons will ordinarily support the inference that the material was not intentionally relied on by the Authority in reaching its decision on the review[21]. Where that inference is appropriate to be drawn in relation to irrelevant but prejudicial material given to the Authority by the Secretary, the decision of the Authority will not be open to challenge on the basis that the Authority has reached the decision taking into account an irrelevant consideration.[21]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [47]. The Secretary's giving of the irrelevant but prejudicial material to the Authority nevertheless has potential to result in the decision-making of the Authority having transgressed either or both of two distinct limitations which Pt 7AA imposes on its jurisdiction. One is failure of a precondition to the exercise of the jurisdiction of the Authority to conduct a review. The other is non-compliance with the need for the Authority to avoid any appearance of bias. The first of those potentially operative procedural limitations on the jurisdiction of the Authority is inherent in the structure of Pt 7AA. That structure makes compliance by the Secretary with the duty to give the specified review material to the Authority, including the review material specified in s 473CB(1)(c), a precondition to the Authority exercising jurisdiction to review the fast track reviewable decision that has been referred to it by the Minister. To the extent that material given by the Secretary to the Authority in purported compliance with that duty is material which the Secretary at the time of referral could not reasonably have considered capable of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in reviewing the referred decision, the giving of that material to the Authority by the Secretary is not compliant with that duty[22]. [22]cf Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360. For the purpose of determining whether or not that precondition to the exercising of the Authority's jurisdiction to review a referred decision is met, no meaningful distinction can be drawn between under-compliance and over-compliance with the Secretary's duty. The legislative contemplation is that the Authority is to receive from the Secretary the totality of the statutorily specified review material and that the Authority is not to receive any other information about the referred applicant from the Secretary unless and until the Authority chooses to exercise its specific power to get new information. Consistently with repeatedly articulated interpretative principle[23], however, the precondition to the Authority exercising jurisdiction is not to be interpreted so rigidly as to result in the invalidity of the Authority's decision where the non-compliance that occurred is immaterial to the decision of the Authority in the sense that the non-compliance could not realistically have made any difference to the decision.[23]Wei v Minister for Immigrationand Border Protection (2015) 257 CLR 22 at 32 [23], 33-34 [26]-[28]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 133-134 [27]-[29]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 444-445 [44]-[45], 452-453 [72].

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER J, NETTLE AND GORDON JJ, EDELMAN J

It will be necessary to return to the application of the test for apprehended bias in the context of Pt 7AA of the Migration Act and the facts of this appeal. However, before doing so, it is both appropriate and necessary to consider why the question of apprehended bias should be considered before the other appeal grounds and, indeed, makes the consideration of those grounds unnecessary.Order of consideration The rule against bias is a principle of procedural fairness, and "principles of procedural fairness focus upon procedures rather than outcomes"[92]. The rule against bias is designed to ensure that the process is, and appears to a fair-minded lay observer to be, a fair process. As four members of this Court said in Michael Wilson & Partners Ltd v Nicholls[93]:"An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been 'the crystallisation of that apprehension in a demonstration of actual prejudgment'[94] impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made." (emphasis in original)[92]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96 [16].[93](2011) 244 CLR 427 at 446 [67]. [94]Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177 at 200 [91]. 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[95]. These points can be, and often are, considered before the decision is made. Here, they could have been considered as soon as the IAA was given the material by the Secretary. The test does not depend on anything which happens at the time of decision, or later. [95]Ebner (2000) 205 CLR 337 at 345 [8]; Isbester (2015) 255 CLR 135 at 146 [21]. Next, the test for apprehended bias does not rest on a finding of actual bias[96] or depend on the final decision actually made. One does not need to find that the irrelevant material affected the decision[97]. 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[98]. [96]Ebner (2000) 205 CLR 337 at 345 [7]. [97]Ebner (2000) 205 CLR 337 at 345 [7].[98]Ebner (2000) 205 CLR 337 at 344 [6]. Finally, the remedies for apprehended bias reinforce the need to consider apprehended bias upfront. In cases of apprehended bias, recusal of the decision‑maker is a possible remedy and is available before a decision is made. Indeed, in Michael Wilson it was said[99]:"If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification [of a decision-maker] but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection."[99](2011) 244 CLR 427 at 449 [76] (footnote omitted).