CNY17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Kiefel CJ,Gageler J.,Nettle,Gordon JJ.,Edelman J.
• Judgment Date: 13 December 2019
• Neutral Citation: [2019] HCA 50
• Docket Number: M72/2019
• Date: 13 December 2019

[2019] HCA 50

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ

M72/2019

CNY17

Appellant

and

Minister for Immigration and Border Protection & Anor

Respondents

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

Constitution, s 75(v).

Migration Act 1958 (Cth), Pt 7AA.

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”.

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.

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 of the Migration Act 1958 (Cth).

The statutory scheme

2 Part 7AA of the Migration Act, the scheme of which has been noted in this Court on previous occasions 2, imposes a requirement for automatic merits review by the Immigration Assessment Authority of decisions of the Minister for Immigration and Border Protection referred to as “fast track reviewable decisions”. Fast track reviewable decisions include certain decisions to refuse protection visas on the basis that the Minister is not satisfied that the applicants meet the main statutory criterion for the grant of protection visas, that they are persons in respect of whom Australia owes protection obligations 3.

3 The Part establishes the Authority within the Migration and Refugee Division of the Administrative Appeals Tribunal 4. The Authority as so established is to consist of the President of the Tribunal and the Division head 5, each of whom must hold appointment for a fixed term under the Administrative Appeals Tribunal Act 1975 (Cth) 6, together with a Senior Reviewer and other Reviewers 7, each of whom are to be persons engaged under the Public Service Act 1999 (Cth) 8.

4 The requirement which the Part imposes for automatic review by the Authority of a fast track reviewable decision is achieved through the imposition of three cumulative and consecutive statutory duties. The Minister has a duty to refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made 9. The Secretary of the Department of Immigration and Border Protection then has a duty to give specified “review material” to the Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority 10. The Authority then has a duty to “review” the referred decision 11 and to do so “by considering the review material” provided to it by the Secretary without accepting or requesting new information and without interviewing the referred applicant 12. That requirement for the Authority to conduct the review by considering the review material provided to it by the Secretary is expressly made subject to other provisions within the Part which confer power on the Authority to get 13 and in specified circumstances to consider 14 “new information”, being information which was not before the Minister when making the referred decision and which the Authority considers may be relevant.

5 The review material which the Secretary has a duty to give to the Authority is specified to include a statement that sets out the findings of fact made by the person who made the fast track reviewable decision, that refers to the evidence on which those findings were based, and that gives the reasons for the decision 15, together with all material provided by the referred applicant to the Minister before the fast track reviewable decision was made 16.

6 By operation of s 473CB(1)(c), the review material which it is the duty of the Secretary to give to the Authority also includes “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”. To consider material that is in the Secretary's possession or control to be relevant to the review within the meaning of the provision, the Secretary (who can be expected ordinarily to act through a delegate 17) obviously needs to form the opinion that the material is capable directly or indirectly 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 the conduct of its review of the referred decision. Compliance with the duty to provide such material to the Authority accordingly necessitates that the Secretary or delegate of the Secretary turn his or her mind to the range of material that is in the Secretary's possession or control which pertains to the referred applicant in order to determine whether or not to form that opinion in relation to the whole or some part of that material. The opinion of the Secretary that material is relevant to the review (so as to be required to be given to the Authority) or is not relevant to the review (so as not to be required to be given to the Authority) must be formed reasonably and on a correct understanding of the law 18

7 The requirement for the Authority then to consider the review material that is given to it by the Secretary is not a requirement for the Authority to adopt the Secretary's opinion of the relevance of the review material to the review of the merits of the referred decision that it is the duty of the Authority to conduct. The requirement is no more than that the Authority examine the review material provided to it by the Secretary in order for the Authority to form and act on its own assessment of the relevance of that material to the review of the referred decision. Within the bounds of reasonableness, it is open to the Authority to assess review material as probative of an issue of fact arising in the review, and give that material such weight as it thinks the material deserves in making the decision on the review. Alternatively, it is open to the Authority to assess review material as wholly irrelevant to the review and place no reliance at all on that material in making its decision on the review. What the Authority cannot do is to fail or refuse to turn its attention to any of the review material that is given to it by the Secretary.

8 To the extent that the Authority treats review material as a basis for making a finding of fact that forms part of the reason for the decision that it

makes on the review, the Authority is obliged to identify that material in the written statement of reasons that it is required to give for the decision 19 as evidence on which that finding is based 20

The nature of the problem

9 The problem with which the appeal is concerned arises in the following apparently not-uncommon scenario.

10 In purported compliance with s 473CB(1)(c), a delegate of the Secretary gives to the Authority a large amount of material contained on a departmental file relating to the referred applicant. Some of the material which the Secretary gives to the Authority is not capable of rationally affecting assessment of the probability of the existence of any fact about which the Authority needs to make a finding in reviewing the referred decision. That material is nevertheless prejudicial to the referred applicant in the sense that the material might be argued to be capable of founding an inference that the referred applicant is a person of bad character or might be interpreted as indicating that the referred applicant is a person who, in the view of the Secretary or of one or more officers of the Department, has been shown by his or her conduct or associations to be a person unworthy of being granted permission to remain in Australia.

11 Without...