Federal Court. Gleeson CJ and Gummow J held in Jia Legeng that an allegation of actual bias must be "distinctly made and clearly proved". Does the same principle apply to an allegation of apprehended bias? Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"? Is the IAA authorised to make a decision at any time after a decision has been referred to it?
The Immigration Assessment Authority (IAA) made a decision (First Authority), which was then quashed by the Federal Circuit Court (FCCA) on the basis that the IAA unreasonably failed to consider the exercise of the discretion to invite the second respondent to an interview pursuant to s 473DC(3) of the Migration Act 1958 (Cth).
The Federal Court (FCA) summarised the subsequent events as follows:
8 Following the remitter, the Authority, which, for convenience, I will refer to as the second Authority, wrote a letter to the respondents and their recently appointed representatives dated 25 July 2019 in which the second Authority said, inter alia:
On 19 June 2019 a court remitted your case back to us for reconsideration. We will now proceed to reconsider your case.
It is important that you:
• act quickly in your dealings with us, as a decision may be made at any time.
(Emphasis in original.)
The second Authority’s letter did not contain an invitation to the respondents to provide further information or to make submissions.
9 On 12 August 2019, the second Authority made its decision to affirm the refusal of the respondents’ application for protection visas.
The respondents then successfully applied to the FCCA for the judicial review of the Second Authority's decision. The FCCA held that the following factors bore on an apprehension of bias on the part of the Second Authority:
(1) the speed with which the second Authority proceeded with the second review following the remittal from the Federal Circuit Court;
(2) the opaque notification provided to the respondents by the second Authority following remittal, which said very little apart from notifying the respondents that they were in the second review engaged “in a race against time”, the parameters of which were not revealed; and
(3) the absence of anything communicated from the second Authority to the respondents that they would have an opportunity to put anything to the second Authority bearing upon the reason for the remittal.
The Minister eventually appealed to the FCA from the second FCCA decision above.
Some of the questions to the FCA were as follows:
Question 1: Gleeson CJ and Gummow J held in Jia Legeng in the context of an allegation of actual bias that an allegation of bias must be "distinctly made and clearly proved". Must an allegation of apprehended bias be distinctly made?
Question 2: Can it be said that, the more serious the allegation of apprehended bias, the more the allegation must be "clearly proved"? In other words, can it be said that the attribution of the "necessary apprehension to the fair-minded and properly informed observer may well be influenced by the nature and seriousness of the conduct and the inferences to be drawn from it that it is said might give rise to the necessary apprehension"?
Question 3: Is the IAA required to "give notice of its receipt of a reference of a fast track reviewable decision or state that it would review the decision within a certain period of time"?
Question 4: Is the IAA authorised to make a decision at any time after a decision has been referred to it?
Question 5: The notice given by the IAA following remitter from the FCCA advised the respondents to "act quickly in your dealings with us, as a decision may be made at any time" and that they were engaged "in a race against time". Is any deficiency in the notice sufficient in itself to lead to a conclusion of apprehended bias?
Question 6: Was the Second Authority, by reason of the FCCA's finding that the First Authority's decision was vitiated with jurisdictional error on the basis of an unreasonable failure to consider the exercise of the discretion to invite the second respondent to interview pursuant to s 473DC(3), bound to extend such an invitation?
Question 7: Do the 3 matters identified by the second FCCA individually or cumulatively lead to a conclusion of apprehended bias?
Question 8: The "second Authority considered the second respondent’s “information” was likely to be of limited probative value in establishing that the first respondent was involved in the LTTE in the key manner he claimed given two matters, being the following: (1) the second respondent was not the one involved in the LTTE; and (2) the secretive nature of such claimed employment". Was there "a flaw in the second Authority’s reasoning that led it to conclude that the second respondent’s “information” was likely to be of limited probative value"?
Question 9: The Second Authority treated a DFAT report produced after the remitter from the FCCA as "a highly authoritative source" of country information and gave it "substantial and greatest weight" and "greatest weight". Did the Second Authority come to the review "with a preconception that material produced by the Commonwealth is practically determinative or permits such permit to intrude upon the proper evaluation of material"?
The FCA answered those questions as follows:
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