Apprehended Bias and the Fast Track Review of Visa Refusals
CNY17 v Minister for Immigration and Border Protection  HCA 50
Part 7AA of the Migration Act 1958 (Cth) creates a “fast track” internal review process for certain kinds of visa application refusals. The fast track review process involves the Secretary of the Department of Immigration and Border Protection providing the reviewing authority—the Immigration Assessment Authority (Authority)—with certain information about an applicant that the Secretary considers to be “relevant”. In CNY17’s case, the Secretary provided the Authority with information that was irrelevant, and also prejudicial to the applicant. The applicant challenged the Authority’s decision (to affirm the refusal of his application) on grounds of apprehended bias. The High Court, by majority, allowed the appeal.
CNY17 stands as a unanimous (five Justice) High Court approval of the apprehended bias test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Combinations of three Justices also formed majority conclusions about the application of the Ebner test, and the requirement of materiality in a jurisdictional error before a decision will be invalidated.
The applicant arrived in Australia in 2013 and was detained on Christmas Island. He was convicted of damaging Commonwealth property in relation to an incident in which he broke a window. He was also charged with spitting at a guard during riots, and was transferred to a correctional facility for a period.
In 2016, the applicant lodged an application for a safe haven visa. In 2017, a delegate of the Minister refused the applicant’s application for a visa on the grounds that the applicant was not a person to whom Australia owed protection obligations. (In other words, the refusal to grant the applicant a visa had nothing to do with the incidents in which he was involved on Christmas Island.) By operation of s 473CA of the Migration Act, the decision was referred to the Authority for review.
The Authority’s Review and the Legislative Scheme
The referral to the Authority of the applicant’s case was automatic. Section 473CA provides that “[t]he Minister must refer a fast track reviewable decision to the [. . .] Authority as soon as reasonably practicable after the decision is made.” If the decision to refuse the applicant’s application had been based on the character test contained in the Migration Act, or on Australia’s national security or the safety of the Australian community, it would not have been a decision to which the fast track process applied.
Part 7AA tightly controls how the fast track review process works. Under s 473CB, the Secretary is required to provide the Authority with three things: one, a statement setting out the reasons for the refusal; two, the material provided by the applicant to the decision-maker; and three (critical for this case), “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”. The third category of information—the “other material”—is required by s 473CB(1)(c).
Section 473DB(1)(a) provides that the Authority “must review a fast track reviewable decision [. . .] by considering the review material provided to the Authority [. . .] without accepting or requesting new information”. Section 473DC creates a power in the Authority to get new information, either in writing or by way of interview, but s 473DD provides that the Authority can only do so where there are “exceptional circumstances”.
The Authority’s Decisions and the Applicant’s Challenges
In CNY17’s case, the Authority affirmed the Minister’s delegate’s decision to refuse to grant the applicant’s visa, and based that decision on the finding that the applicant was not a refugee and was not owed protection obligations. The material provided to the Authority by the Department in CNY17’s case included 48 pages of documents that were marked as falling within s 473CB(1)(c), that is, the Secretary had asserted that they were “other material” in the Secretary’s possession or control that were considered by the Secretary to be relevant. These 48 pages consisted of assorted records and file notes, and contained words and phrases such as “riots”, “multiple incidents”, “interview with National Security Monitoring Section”, “possible mental health issues”, “aggressive and/or challenging behaviour”. The 48 pages also conveyed the fact that the applicant had been convicted of one offence, charged with another, and had been transferred from Christmas Island to a correctional facility.
In the Authority’s reasons for decision, it did not refer to the 48 pages of information, or the references to irrelevant information that they contained.
The applicant sought judicial review of the Authority’s decision in the Federal Circuit Court, arguing that the 48 pages were irrelevant and prejudicial, and, as a result, the Authority’s decision was attended by apprehended bias. The Federal Circuit Court (Judge Street) dismissed the applicant’s application with costs. An appeal to the Full Court of the Federal Court, on the question of apprehended bias, was dismissed by majority (Moshinsky and Thawley JJ forming a majority; Mortimer J dissented, and would have allowed the appeal).
The appeal to the High Court involved a challenge to the Federal Court’s decision in relation to apprehended bias. In the course of the High Court appeal, however, a second question arose. The second question was whether the formation of an opinion, by the Secretary, that material provided to the Authority as “other material” was relevant constituted a precondition for the exercise of jurisdiction by the Authority. If it were, and if the Secretary failed to satisfy that precondition, then the conclusion reached by the Authority might be attended by jurisdictional error.
The Decision of the High Court
The whole court (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) applied the test for apprehended bias established in Ebner: whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision before it.
Nettle and Gordon JJ in joint reasons, and Edelman J writing separately, concluded that the fair-minded lay observer in CNY17’s case might reasonably have apprehended that the Authority might not have brought an impartial mind to the decision before it as a result of the irrelevant and prejudicial material. This majority conclusion resulted in the appeal being allowed, and constitutes the dispositive conclusion of a majority of the Court.
Kiefel CJ and Gageler J dissented on the question of apprehended bias, observing that the irrelevant information contained in the 48 pages merely “fleshed out” information that was already contained in other material before the Authority by way of the information provided by the applicant.
The Court split on whether a decision-maker’s reasons could be used to determine whether the decision is attended by apprehended bias. A majority of Kiefel CJ, Gageler and Edelman JJ formed the view that the question of whether conduct has resulted in a breach of the rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises, including, if the question arises after a decision-maker has made a decision, the decision-maker’s reasons. Edelman J referred to the fact that the Authority’s reasons did not contain any statement that the Authority recognised that certain information provided by the Secretary was irrelevant, nor did the Authority say that it had not placed any reliance on that irrelevant information. Instead, Edelman J described the Authority’s reasons as embodying a “deafening silence” on the irrelevant material.
On reference to the decision-maker’s reasons, Nettle and Gordon JJ took a different view. Nettle and Gordon JJ stated that the analysis of what the fair-minded lay observer might reasonably have thought “does not depend on anything which happens at the time of the decision, or later”.
Although Kiefel CJ, Gageler and Edelman JJ’s conclusion on the question of the use of the decision-maker’s reasons does not constitute a part of the Court’s ratio, given that Kiefel CJ and Gageler J were in dissent in the result of the case, it does constitute a majority opinion of the Court in respect of an aspect of the Ebner test. In practical terms, it is unlikely that any lower court would feel free to depart from the Kiefel CJ, Gageler and Edelman JJ view, despite Nettle and Gordon JJ’s contradictory reasoning.
Kiefel CJ, Gageler and Edelman JJ also formed a majority in relation to another point: whether the Secretary is prohibited from providing irrelevant information to the Authority, or is merely not required to provide such information. Kiefel CJ and Gageler J reasoned as follows. The legislation contemplates 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. Edelman J reasoned that the Secretary’s express duty to provide relevant information to the Authority carries with it an implied prohibition against the provision of any other material which the Secretary could not reasonably consider to be relevant to the review. (Nettle and Gordon JJ considered that it was unnecessary to consider this aspect of the appeal, given the result in relation to apprehended bias.)
Kiefel CJ, Gageler and Edelman JJ also formed a majority on a final point. Their Honours agreed that the failure of the Secretary to comply with the duty not to provide irrelevant material would not invalidate the Authority’s decision unless the Secretary’s failure was material. On materiality, Kiefel CJ and Gageler J concluded that the question of whether the provision of irrelevant information by the Secretary was material was different in concept and in nature from the question of whether the Authority’s decision was attended by apprehended bias, but nevertheless stated that the materiality question was to be decided “by reference to the same considerations as inform the answer already given to the question of whether a hypothetical fair-minded lay observer” would have thought. Their Honours concluded that the Secretary’s error was not material. Edelman J discussed materiality, but did not find it necessary to reach a conclusion on the question, except to note that the Minister conceded that if the applicant established apprehended bias, then the Secretary’s error would have been material.