CNY17 v Minister for Immigration and Border Protection & Anor
[2019] HCATrans 101
[2019] HCATrans 101
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M159 of 2018
B e t w e e n -
CNY17
Applicant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
Application for special leave to appeal
KIEFEL CJ
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 17 MAY 2019, AT 10.53 AM
Copyright in the High Court of Australia
MS L.G. DE FERRARI SC: If the Court pleases, I appear with MR M.W. GUO for the applicant. (instructed by Estrin Saul Lawyers)
MR G.R. KENNETT SC: May it please the Court, I appear with MR A.P. YUILE for the first respondent. (instructed by the Australian Government Solicitor)
KIEFEL CJ: Yes, Ms De Ferrari.
MS DE FERRARI: Thank you, your Honours. Your Honours, there are a number of propositions that can be made about apprehended bias, and I will outline them very briefly. The first is that there is a two‑step test as identified by this Court in Ebner. Now, there is a possible question, which is whether the test should in fact be articulated as a three‑step test, which was the view expressed by Justice Gageler in Isbester, and each of the justices below appeared to adopt that as a proposition. That is the view of Justice Gageler as I said in Isbester. The learned authors of Judicial Review of Administrative Action think that that third step is unnecessary and it is really part of the second step.
A related possible question is whether the third step, or possibly the second step, includes an aspect of materiality, meaning materiality of deviation from a neutral evaluation of the merits of the decision. Those questions are unresolved in this Court.
KIEFEL CJ: How would the application of the third step that you have referred to have led the court below into error.
MS DE FERRARI: Your Honour, all three judges appear to have adopted that test. Justice Mortimer came to one view; the other two judges did not. In our view, it might have led to an error because Justices Moshinsky and Thawley appear to have disregarded the possibility of a subconscious risk of prejudice. They focused purely on what the Tribunal would have done consciously ‑ ‑ ‑
EDELMAN J: An apprehension of a subconscious risk of prejudice?
MS DE FERRARI: That is correct. Of course, the next proposition is that the two‑step test or the three‑step test has to be considered in the context of a reasonable, fair‑minded bystander. So it is not just a test of itself; one has to look at the abstraction of the fair‑minded observer and ascribe certain characteristics to that observer.
What seems to have happened here with the majority is that, effectively, they both say that the materials are not sufficiently prejudicial. It is accepted by all the judges that the materials were irrelevant to anything that the Authority had to do. It is accepted by all three judges that the materials were prejudicial. The difference seems to be about sufficiently prejudicial.
EDELMAN J: There must be some form of a threshold of prejudice, must there not?
MS DE FERRARI: Yes, and that is the submission I was trying to make, that in evaluating that threshold the majority judges disregarded – your Honours will not find any consideration in either of those two judgments – entirely the risk of subconscious prejudice. Your Honours, this Court has said, for example, in Applicant VEAL that the risk is such that even when a decision‑maker expressly states in their reasons, “I have put that material out of my mind”, that does not of itself alleviate that risk. So it is a very present risk.
EDELMAN J: That was not stated here, though, was it? Was there a statement by the Authority that the material had been put out of the decision‑maker’s mind?
MS DE FERRARI: No, and that is the next proposition. A fortiori in this case, where the Tribunal says nothing about it, does not offer any opportunity to the applicant to comment about it, it is completely opaque, but then somehow the majority of judges were able to conclude that risk is something that the fair‑minded observer would think is not there.
KIEFEL CJ: Do you go so far as to say that their Honours in the majority confused the test for actual bias with that of apprehension of bias?
MS DE FERRARI: To some extent they must have engaged in what was in the actual mind of the decision‑maker.
KIEFEL CJ: Yes. That is what I am wondering, whether you are actually putting that.
MS DE FERRARI: What I am putting, your Honour, is that this case presents a very good example of illuminating how the task has to be conducted in an administrative context, one which is very different from a judicial context.
KIEFEL CJ: You are relying upon the fourth example of apprehension of bias in Webb, are you not?
MS DE FERRARI: Yes.
KIEFEL CJ: That is the area that we are in.
MS DE FERRARI: We are, with the overlap of association, because it is certainly an important feature of what Justice Mortimer said, and Justice Thawley effectively adopted it, that there is this association, which the reasonable bystander would know and apprehend, between the role of the Secretary in considering this information to be relevant and giving it to the Tribunal in circumstances where effectively what the Secretary gives to the Tribunal constitutes the four corners of the matter for review, the primary rule, as this Court has said in Plaintiff M174 being that you just do it on the papers. So there is that association as well.
The materials – your Honours do not have them but they are fairly described in the judgments – are different in form. They are reports, they are emails, but they are all about how departmental officers assessed the character of my client: a troublemaker, involved in riots, difficult to manage in detention. So there is that association as well as the fact that it is plainly, and it was accepted below by all the judges, irrelevant and plainly prejudicial.
The majority embarked on this analysis – we call it unpicking – of why it might be said that the threshold of materiality – if that is to be the test, there is no authority so far from that point, although we acknowledge that the recent decisions of this Court are tending towards there being test of materiality in every jurisdictional error.
EDELMAN J: That is materiality in a different sense from the sense it is being used here, though, is it not? The materiality in cases like Hossain is concerned with whether there was any possibility that the result could have been different. “Materiality”, as I understand it, that is referred to here is a threshold of sufficient prejudice.
MS DE FERRARI: Yes. It might be that is the answer that in a sense with cases of apprehended bias, but again it is difficult in a sense to separate them at this stage when you are looking into the mind of the decision‑maker as to subconscious risk from actual bias. It might be the reason why with bias one does not have the same implication of materiality, even though it arises in a statutory context like Hossain and SZMTA.
That seems to be what has happened, that the majority justices accepted that material was prejudicial effectively linked on the fact that my client had disclosed on the application, as he had to do and as he did truthfully, that he had been charged and convicted with a good behaviour bond of breaking some Commonwealth property and that he had been charged with another incident, effectively pick up on that to say anything else that the departmental officers could have said about him and his character could not be sufficiently prejudicial, could not have an effect on the actual mind of the decision‑maker, even subconsciously.
We say that reveals error because there are no gradations of materiality of prejudice, if I can put it that way – no gradation of prejudice. If one has to look into the subconscious effect on the actual mind of the decision‑maker, the reasonable bystander would not do that. As was said in Kanda, the reasonable bystander would just look at the appreciable risk that the prejudice was caused. That seems to be the difference, your Honours, between the majority and Justice Mortimer.
We say that the case is important because, first of all, it would offer guidance as to how one gives content to the reasonable bystander in an administrative context. There are not many cases that do so.
EDELMAN J: Have there been any in this Court and the fourth category of Webb since 1986?
MS DE FERRARI: None, your Honour, no. There are not many cases that I am aware of in the Federal Court either. It really is a problem that is created by this particular part of the Act which forces this process where the applicant is completely cut out. The application is made by the Minister ‑ mandated to be made by the Minister – everything is provided by the Secretary, and the decision is on the papers. That is the default rules.
EDELMAN J: The last vestige of natural justice?
MS DE FERRARI: The hearing rule is abrogated and is replaced by the new information. I think it is said against us that it depends on the facts. We plainly accept that cases about apprehended bias, as this Court has said in Isbester, ultimately turn on largely factual evaluations but they are against important considerations about the content. In this case the content is really where does one put the reasonable bystander, at what point of the decision‑making you put that bystander and why would the bystander, in the words of Justice Thawley, for example, think that there is a difference in the fact that the materials were provided by the delegate of the Secretary as opposed to being provided by the Secretary?
They are important questions that ultimately elevate to principles. Isbester could have been said to be the same case, a case ultimately on the facts or how one analyses the facts against the particular statutory context. Re JRL was ultimately a case where the division between the majority and the minority turned on considerations of the facts as to what happened subsequent in terms of the judge considering the matter and giving an opportunity to the parties.
All of these cases ultimately turn on that, but the question is did the majority effectively almost merge into a test of actual bias because they effectively said viewed through the lens of the reasonable bystander it could not have created that risk, even subconsciously. Your Honours, that is why we say that this is an important case and a suitable vehicle.
In a sense, what we have identified as grounds 3 to 5, if I might be so bold, are possibly unnecessary for two reasons. One, because if your Honours consider the first issue, apprehended bias and the proper legal test, the matters that arise in consideration of those grounds necessarily have to be considered. They are part of the statutory context.
EDELMAN J: Proposed grounds 3, 4 and 5 are, in effect, particulars of ground 2.
MS DE FERRARI: What was ground 2 below?
EDELMAN J: Your ground 2:
The Federal Court erred in failing to find that the decision of the IAA was vitiated by apprehended bias.
MS DE FERRARI: In a sense they are, for this reason. While I am on the bold statement can I also say that if we fail to show apprehended bias then it will be correct to say that whatever the Secretary did, however wrongly the Secretary did it – and we say he did it wrongly – would not lead to invalidity of the decision of the IAA because whatever the Secretary did would not have been material.
Looking at the Secretary’s role in a sense, it is almost looking at the question of is this somehow similar to fall on the Tribunal. Is there a level at which what the Secretary does is such that the Tribunal, even unknowingly, cannot really get itself out?
EDELMAN J: Is that all by way of saying that effectively if you were granted special leave that you would only really rely upon grounds 1 and 2 and then 3, 4 and 5 would just be by way of submissions to the extent to which they supported ground 2?
MS DE FERRARI: Yes, that is correct, your Honour, because really that is part of the whole statutory scheme. It is a statutory scheme that does not give any hearing rule, eliminates the hearing rule. We say it does not eliminate the bias rule, including if that is the only safety valve of the Tribunal to say, “I have this prejudicial material which obviously is relevant; I am going to have to give an opportunity to the applicant to deal with it”, it does not exclude that. As we say, in a sense what the Secretary
does, if it did not result in apprehended bias, then there is no reason to trace it back.
But, your Honours, the first ground, we say, is an important one. There is obviously a difference of opinion below. We have identified what we say was the error of the majority, with respect. The reasons of her Honour Justice Mortimer are, we submit, very persuasive, including in the analysis of where you put the bystander. In this type of case, you put it right at the beginning when the Authority is reading from 49 pages of irrelevant materials from the Department. For that reason and the uniqueness of the statutory context and the important questions of principle, we say that the case merits special leave.
KIEFEL CJ: Thank you, Ms De Ferrari. Yes, Mr Kennett.
MR KENNETT: Your Honours, as to apprehended bias, I do not think my friend disputes the proposition that the case involves the application of accepted principles to a particular set of facts. Insofar as it is suggested that there is a tension between the two levels of might in Ebner and the three steps of Justice Gageler in Isbester, we would submit that they are speaking about different things. His Honour is merely setting out the analytical steps that are necessary in identifying the apprehension of the reasonable bystander.
EDELMAN J: That may be right, Mr Kennett, but the other point that the applicant makes is that there is, I think on any view, an unsettled nature of the concept of materiality in this Court. Also, there have been very few instances where, at least since 1986, either this Court or even the Federal Court has considered the fourth category in Webb. This is a crisp question through which to consider those issues, is it not?
MR KENNETT: Your Honour, we would submit not for a couple of reasons which I will take a minute to develop. But as to materiality, we do not apprehend the judges below to have been relying on a concept of materiality of prejudice as constituting a test or sufficiency of prejudice to constitute a test whereby either you are on one side of a stated line or another. It all goes to the overall question whether a reasonable, fair‑minded observer would have a particular apprehension.
The nature of the apprehension that the fair‑minded observer is going to have will depend to a large degree in a case like this on the nature of the material that is said to be prejudicial. In effect, how prejudicial it is is one of those elements. We would resist the notion that this is a test of materiality. It is certainly speaking in a different realm to the notions of materiality that the Court has considered in recent cases on questions of jurisdictional error. The degree of prejudice is part of everything that goes into the mix in the reasonable bystander’s mind, together with the nature of the body, the nature of the question to be decided – all of those matters.
KIEFEL CJ: What do you say to the submission, Mr Kennett, that the majority’s reasons below appear to encompass a notion of the subjective view of the decision‑maker?
MR KENNETT: We would submit that what it is all directed at is assessing the reasonableness of a possible apprehension of bias. Insofar as subconscious affectation is an issue, as it plainly will be, Justice Moshinsky makes express reference to that in paragraph 136. Everything that Justice Thawley says really is directed at that task of analysing whether a fair‑minded observer would apprehend a departure from statutory norms as a result of this material.
So, for example, in paragraph 162 on page 106, his Honour talks about administrative decision‑makers in a general way and makes some observations about administration decision‑makers dealing with irrelevant material, and then brings that back to a fair‑minded observer. There may be some reference at various points to what could have been in the Authority’s mind, but we would submit that what it is all directed to is the right task, which is analysing the hypothetical, fair‑minded observer.
EDELMAN J: Do you dispute any of what I understand to be four propositions that are at the core of the applicant’s submissions, which is, one, that the reviewer received prejudicial information which contained a substantial amount of irrelevant material; two, that the reviewer had regard to it; three, that the reviewer did not say that any of the material was irrelevant or had been given no weight; and, four, that a reasonable person would expect that the decision‑maker would know that the Secretary had considered that material to be relevant?
MR KENNETT: Two and three we do not have a difficulty with. Four - one needs to be qualified in the sense that relevance for 473CB is a broader concept than relevance in the mind of the Authority when it makes its decision. As to your Honour’s first proposition, I am not sure that I remember all of the detail of it, but certainly it is accepted that the Tribunal was given a volume of material which was capable of leading to a dim view of the applicant’s general character, if I can put it in that broad way.
EDELMAN J: I take it there is no dispute about the summary that the applicant gives of that material at paragraph 21 on page 121?
MR KENNETT: No, your Honour. There is not any dispute about that summary of it. Of course, one thing that was prominent in the mind of the majority judges below is that the IAA would have known most of the substance of this in any event from other material that had to be before it. I hesitated over the description of this as irrelevant. Interestingly, one thing that Justice Mortimer says in her Honour’s reasons at paragraph 58 on page 75 was that it could have led to a view of the applicant that he was untrustworthy. If it has that character then one starts to question whether it is actually relevant, because if it goes to his credibility then ‑ ‑ ‑
EDELMAN J: If it is just the opinions of other people that he is not credible does that somehow become a relevant matter to take into account in deciding whether the applicant is trustworthy?
MR KENNETT: It would be a matter for any responsible decision‑maker to decide what, if anything, to make of that. It is peripheral but it is not a million miles removed from the subject matter of the questions before the Authority. If it really goes to his credit then one wonders why everybody is saying it is irrelevant.
KIEFEL CJ: Mr Kennett, how did the majority use the fact that much of the material was already before the decision‑maker? What did their Honours draw from that - that it did not matter? There was the additional fact that the Secretary of course gave the material. That would have carried some weight.
MR KENNETT: The whole body of material comes from the Secretary.
KIEFEL CJ: Yes.
MR KENNETT: Prima facie, the Secretary, or the Secretary’s delegate as the case may be, thinks it worth looking at.
KIEFEL CJ: Yes.
MR KENNETT: But the Authority is there to review what the delegate has decided, so we would not accept that that is likely to carry any great weight in the mind of the Authority or the reasonable observer. But their Honours appear to have reasoned that if the Authority already knew the substance of much of this from the delegate’s reasons and from what the applicant had disclosed in his application form, then ‑ ‑ ‑
EDELMAN J: Is that correct, though? Is it correct that the Authority knew that, either from the delegate’s reasons or what had been disclosed of the opinions of all of the officers of the Minister, the views of the Superintendent of the Australian Border Force? Was that material that was in the delegate’s decision?
MR KENNETT: Their Honours analysed it quite carefully, and I do not want to repeat that. It certainly appears to be the case that the Authority knew the essential facts of the applicant having been convicted of an offence, charged with another offence. Their Honours below reasoned that that means that the degree of prejudice occasioned by elaboration of that in the documents was less than if it had just come out of the blue. That is a legitimate form of reasoning, we would submit.
Your Honours, I am not sure how I am going for time but I just wanted to mention what we would submit is an anterior question here for the bias ground. It is a significant one in light of my friend’s acceptance of your Honour Justice Edelman’s proposition that grounds 3 to 5 are really particulars of ground 2. That suggests an acceptance of what I am about to say which is that Justice Deane in Webb’s Case referred to material that was extraneous or inadmissible. That limitation on the fourth category must be right, we would say, because the rule against bias arises from a process of statutory construction and it involves an apprehension of a deviation from the statutory standard of neutrality.
So if material is properly before the decision‑maker – that is to say, if it has been put before him or her in accordance with the statute – then we would submit that we are not in the territory of apprehended bias at all because the statute only requires or permits that material to be looked at even if, looking at it through other spectacles, one might say it is prejudicial.
EDELMAN J: The question is starting to get more interesting.
MR KENNETT: Where that goes is that to succeed on bias, our friends need to show, we would say, that the provision of the material to the Authority was contrary to the Secretary’s obligations under 473CB(1) ‑ ‑ ‑
KIEFEL CJ: Questions of admissibility bring the focus back to relevance.
MR KENNETT: They do, and possibly interesting questions, but the point is that the bias grounds in truth really stand or fall by reference to those latter grounds alleging jurisdictional error. Another way of looking at it would be that if this material, prejudicial as it is said to be, was legitimately part of the review – that is, properly part of the review material – then the IAA has no choice but to look at it. If the matter went back, the IAA would still have no choice but to look at it.
Apprehended bias, or the fourth category, really, we would say, cannot bite in a situation like that, so one needs to look at 473CB(1). This is a point that the majority did not need to grapple with, but we would say Justice Mortimer did need to and did not. She agreed with the majority as to whether there had been a breach of CB(1). The court was unanimous on this point, and the reasons are in fairly short form at pages 100 to 101 of the book.
There was no basis, we would say, for an inference that the delegate did not actually form a view that this material was relevant. If that is a question in dispute then it is a nitty‑gritty factual question which the Court would have to decide in essentially an evidentiary void and not, we would say, a suitable matter for special leave.
Her Honour also found it was open to the delegate to have the view that the material was relevant as background or contextual information, as Justice Moshinsky put it. We would respectfully endorse that and note that CB(1)(c) must be read as involving a broader notion of relevance than the word “relevant” would have in other situations, otherwise the Secretary would have to second‑guess the IAA’s reasoning in working out what was relevant. So there is no difficulty, we would say, with the court’s reasoning that the material was lawfully put by the Secretary before the IAA.
EDELMAN J: There is still going to be limits to CB(1)(c). It does not permit the Secretary to put absolutely anything before the IAA.
MR KENNETT: That is another question which we would wish to debate if the matter were given leave. There is at least a legitimate view, we would say, that CB puts a floor under the provision of materials rather than a ceiling over the top of it and that more better informed decision‑making is usually better rather than worse.
There is a real question, we would say, whether the Secretary breaches CB by giving too much. In a case of under‑provision, one could certainly see why that is the case and why that might go to the Authority’s jurisdiction. In a case of over‑provision, it is very different. We would respectfully suggest that over‑provision either is not a breach of the Secretary’s duty or, if it is, is very unlikely to be material in the sense of something that founds jurisdictional error.
For those reasons we would suggest that the applicant has significant hurdles to overcome, including, it would seem, factual ones, in establishing a failure of compliance by the Secretary. If there has not been that failure of compliance then it would seem to us there is not material in front of the Tribunal that is extraneous or inadmissible in the relevant sense, so the ground falls away from under apprehended bias. Those are our submissions, if the Court pleases.
KIEFEL CJ: Thank you, Mr Kennett. Yes, Ms De Ferrari.
MS DE FERRARI: Thank you, your Honour. The last matters that my learned friend addressed bring up these points. First, the submissions are inconsistent with another Full Federal Court decision, and that is AMA16, about relevance and the effect of the provision by the Secretary of those materials. That is the first point.
The second point is that in terms of over‑provision against an evidentiary void, we have said in our submissions on paragraph (c) of section 473CB(1) is that the correct position is that the Secretary must not just form a view but it must do so reasonably in a correct understanding of the law. The cases on Part 7 are not in point.
That position now appears to be accepted by the Full Federal Court. There is a decision of the Full Federal Court that was handed down only last month, CQR17 v Minister [2019] FCAFC 61, where their Honours accept that the analysis of the provision 473CB is quite different in Part 7AA from the analysis that led the Full Court to say what it said in WAGP and other cases. They accept that it has to be formed on a correct understanding of the law.
This is why there is no evidentiary problem in this case because on a correct understanding of the law by the delegate of the Secretary, the materials about his offending, let alone where he was in prison and let alone what the people in the detention centre thought about him, could never be relevant to the task of the Authority, because the Authority never looks at the matters that the delegate did in terms of whether there is a serious offence or whether there is other disqualifying matters by reason of an offending.
So those materials could never, on a correct understanding of the law, have been relevant, so there is no factual problem. It is simply a question of what is the correct test to look at that provision. As I have indicated, the Full Federal Court seems to be coming to the view, contrary to this Full Court, that it is a different test in the case of Part 7AA and it makes sense because, in Part 7AA, there is nothing that the applicant can do between the Secretary providing the material and the decision of the Authority.
In respect of paragraphs 135 and 137 of his Honour Justice Moshinsky’s decision, your Honours, those paragraphs precisely show why the majority, we say, verged into the inquiry of looking at what effect it had in the actual mind of the decision‑maker. They precisely indicate that problem. They say not sufficiently prejudicial in the effect that it would have had on the decision‑maker. Unless there are any other further questions.
KIEFEL CJ: Thank you. There will be a grant of special leave in this matter. What is your time estimate, Ms De Ferrari.
MS DE FERRARI: Half a day, your Honour.
MR KENNETT: I agree with that, your Honour.
KIEFEL CJ: Would you please ensure that your instructing solicitors obtain a copy of the timetable from the Deputy Registrar.
The Court will adjourn to reconstitute.
AT 11.30 AM THE MATTER WAS CONCLUDED
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