SZRBA v Minister for Immigration

The applicant, SZRBA, sought judicial review of a recommendation made by an independent merits reviewer that the applicant not be recognised as a person to whom Australia has protection obligations. The dispute concerned allegations of bias on the part of the reviewer. The matter came before Judge Cameron of the Federal Court of Australia.

The central legal issue before the Court was whether the reviewer's reasons for making the recommendation were tainted by bias, or whether a reasonable observer might have apprehended the possibility of such bias. This arose from the reviewer's practice of repeating passages from earlier reasons in similar matters when formulating the current recommendation.

Judge Cameron considered the principles of apprehended bias, which require a consideration of whether a fair-minded lay observer, having considered the facts, would apprehend that the reviewer might not bring an impartial mind to the decision. The Court found that the repetition of identical or near-identical passages in reasons for decision in different cases, without specific adaptation to the facts of the particular case under review, could lead a reasonable observer to apprehend bias. This was because it suggested a predetermined outcome or a failure to engage with the specific evidence and arguments presented by the applicant in their matter. The Court concluded that the reviewer's reasons did not demonstrate a proper engagement with the applicant's case, and therefore, the recommendation was vitiated by apprehended bias.

The Court ordered that the recommendation made by the independent merits reviewer be set aside.