Apprehension of subconscious bias?

High Court: Unbeknown to the Appellant, Secretary gave IAA additional material in purported compliance with s 473CB(1)(c). However, the additional material was objectively both irrelevant to IAA's review and prejudicial to Appellant. IAA then wrote to Appellant: DHA "has provided us with all documents they consider relevant to your case". It eventually affirmed delegate's protection visa refusal, without requesting new information or interviewing Appellant. IAA's reasons: stated that IAA "had regard to the material referred by the Secretary"; did not refer to additional material. Did the giving of additional material result in: a material "failure of a precondition to the exercise of the jurisdiction of the [IAA] to conduct a review"; a reasonable apprehension of bias on the part of IAA?

The questions to the High Court (HCA) were as follows:

Question 1:

Background: Paragraph s 473CB(1)(c) of the Migration Act 1958 (Cth) allowed the Secretary to give the IAA "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".

Question: Was compliance with s 473CB(1)(c) a precondition to the Authority's jurisdiction to conduct a review?

Question 2: If the answer to Question 1 is "yes", did the giving of the additional material comply with s 473CB(1)(c)?

Question 3: If the answer to Question 2 is "no", was the non-compliance with s 473CB(1)(c) material to the IAA's decision?

Question 4: What is the test for apprehended bias?

Question 5: Must the fair-minded lay observer "be taken to recognise that even a professional decision-maker is not 'a passionless thinking machine' and that information consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making"?

Question 6: "If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification [of a decision-maker] but acquiesces in the proceedings by not taking objection, ... will [it] likely be held that the party has waived the objection"?

Question 7: Might the hypothetical fair-minded lay observer have a reasonable apprehension of bias on the part of the IAA?

Question 8: If the answer to Question 7 is "yes", could the risk of bias "have been 'neutralised' by affording the appellant an opportunity to comment on the material"?

Question 9: Could it be said that "quashing the decision of the IAA and remitting the matter back to it would put the IAA in an 'impossible bind', because the IAA would once again be exposed to the prejudicial material"?

Question 10:

Background: Section 473DA provides that "[Div 3 of Pt 7AA,] together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [IAA]".

Question: Is the rule against apprehended bias confined by s 473DA?

The HCA answered those questions as follows:

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