Federal Court. In CNY17, HCA decided that material placed by Secretary before IAA was prejudicial, causing a reasonable apprehension of subconscious bias. Here, Minister placed before AAT convictions of sexual offence against a minor and police materials relating to allegations of sexual offence against another minor, for which Applicant was acquitted. Was it essential to the conclusion in CNY17 that the prejudicial material was irrelevant? If so, were the police materials irrelevant on the basis that: para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"; or that the AAT could not "go behind and impugn the acquittal"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was it essential to the conclusion in CNY17 of a reasonable apprehension of subconscious bias that the prejudicial material was irrelevant?
Question 2: If the answer to Question 1 is "yes", were the police materials irrelevant on the basis that para 13.1(2) of Direction No 79 "expressly or impliedly limited to conduct in which the non-citizen has been found to have engaged by reason of having been convicted of a criminal offence"?
Question 3: Can it be said that "it may be possible, by reference to the elements of a charge and the course of the trial, to establish that it follows from the fact of acquittal that particular evidence that was relied on at the trial should not be taken into account, for example because it is apparent that the jury disbelieved it"?
Question 4: If the answer to Question 1 is "yes", were the police materials irrelevant on the basis that the AAT could not "go behind and impugn the acquittal"?
Question 5: Can it be said that, "where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that it does not presently intend to exercise that right, it may be held to have waived the right"?
Question 6: If the answer to Question 5 is "yes", does it follow that objection must be made immediately?
Question 7: The Applicant argued before the FCA that a waiver was negatived on the basis that he did not have funds to pursue an objection and a further hearing before a different Tribunal. Can it be said that "it would be inconsistent with the general approach of the law to questions such as waiver to take into account subjective matters uncommunicated to the other party or the Tribunal as negativing waiver"?
Question 8: Should a waiver be negatived on the basis that an "application for reconstitution of the Tribunal might have been refused on the basis that the Tribunal could have disavowed any reliance on the contentious material, and the applicant was not to know at the hearing that the Tribunal would not include any such disavowal in its reasons"?
Question 9: Should a waiver be negatived on the basis that "the facts which supported the objection did not become apparent until the day of the hearing, which was only 10 business days before the mandatory 84 day period for the Tribunal to decide on the review"?
The FCA answered those questions as follows:
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