Federal Court (Full Court). Was it open to the Minister to seek to persuade the Tribunal that the Appellant had engaged in the conduct that constituted the offence of which he was acquitted? In other words, could the Tribunal "go behind" the acquittal? In a case which is concerned with a claim of apprehended bias based upon irrelevant but prejudicial material being before the decision-maker, are the reasons given for the decision relevant to determination of whether a claim apprehended bias is made out?
Some of the questions to the Full Court of the Federal Court (FCA) were as follows:
Question 1: The Appellant was charged with 4 counts of sexual offending, 3 against one step-daughter and the fourth against another step-daughter. He was convicted of the first 3 counts and acquitted of the fourth. In the content of proceedings relating to the review of the Minister's refusal under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Appellant's visa, was it open to the Minister to seek to persuade the Tribunal that the Appellant had engaged in the conduct that constituted the offence of which he was acquitted? In other words, could the Tribunal "go behind" the acquittal?
Question 2: In a case which is concerned with a claim of apprehended bias based upon irrelevant but prejudicial material being before the decision-maker, are the reasons given for the decision relevant to determination of whether a claim apprehended bias is made out?
Question 3: If the answer to Question 2 is "yes", can it be said that, "in bringing the contents of the decision to account there must be due regard to the potential for some matters to operate subconsciously on the decision-maker even where there is an express disavowal of any regard to those matters"?
Question 4: In order to make out a claim of apprehended bias, is it sufficient to demonstrate that there was prejudicial but inadmissible material before the decision-maker?
Question 5: Can it be said that the material before the Tribunal concerning the fourth count makes out the claim of apprehended bias on the basis that, had it been considered by the Tribunal, that material "was irrelevant because it would have been unreasonable for the Tribunal to have brought the contentious material to account in making a finding to the effect that the appellant had committed the offence described in the fourth count"?
Question 6: Can it be said that because, among other requirements, the AAT Act requires Members to be judges or lawyers, the "fair-minded lay observer may be expected to place considerable confidence in the capacity of the Tribunal to put to one side material that is germane to the decision making task but is accepted during the course of the hearing to be irrelevant, even where that material is prejudicial to one party"?
Question 7: Should the lack of objection by the Appellant's lawyers before the Tribunal to the adducing by the Minister of irrelevant material bear on whether his claim of apprehended bias is made out?
Question 8: In the context of whether leave should be granted to raise for the first time an argument not raised in the court below, a single judge of the FCA held as follows in Han v Minister for Home Affairs [2019] FCA 331: "In this case, the change is from a ground of asserted invalidity of a regulation, a purely legal point, to a ground of jurisdictional error, which turns on the facts and circumstances of the particular case at hand and the decision-making process that took place. The latter is a true trial point turning on executive error, rather than an appeal point turning on judicial error (albeit in relation to executive error)". Can it be said that, while not intending to identify error in that passage from Han, "care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules"?
The FCAFC answered those questions as follows: