Federal Court. Can it be said that, “in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA”?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: What are the relevant considerations in the case of an alleged subconscious effect of irrelevant material?
Question 2: In deciding whether irrelevant, but prejudicial material raises a reasonable apprehension of subconscious bias, is the standard to be adopted that “of a judicial decision-maker who is routinely presented with, and expected to discard, irrelevant and potentially highly prejudicial material”?
Question 3: Is the argument that a differently constituted IAA could not undertake its review without reading the first Federal Circuit Court judgment or the Full Court judgment and therefore without becoming aware of the irrelevant/prejudicial material an argument of necessity?
Question 4: The Court said as follows: “It is clear from the discussions in Laws and Ebner that the doctrine of “necessity” as an exception to the bias rule means that if the decision-making body cannot perform its functions as required without falling foul of the bias rule then the function must still be performed irrespective of the bias”. Does the doctrine of necessity operate as an exception to the rules about both actual and apprehended bias?
Question 5: Is the criterion for necessity strict necessity, not mere convenience or practicality?
Question 6: Can it be said that, “in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA”?
Question 7: If the answer to Question 6 is ‘no’, does that mean that, “if the Secretary did provide the IAA with a judgment about an applicant which did nothing but deal with apprehended bias issues vitiating an earlier IAA decision, then the differently constituted IAA would itself be infected by the apprehended bias”?
Question 8: Is there a “difference between the Secretary providing material to the IAA under s 473CB(1)(c) of the Migration act and the IAA otherwise becoming aware of information in the course of its functions” such as “where the IAA, in the ordinary course of informing itself generally about legal developments, becomes aware of a judgment”?
Question 9: Can it be said that “the fair-minded and properly informed lay observer would be taken to understand that in the ordinary course the IAA must keep itself generally informed about the development of the law including by reading judgments relevant to its tions”?
Question 10: If the answer to Question 9 is ‘yes’, does it follow that “fact that the IAA may have obtained or an IAA reviewer read a judgment in the general course of its functions” immunises the IAA from an allegation of a reasonable apprehension of bias arising from “the Secretary providing the judgment to the IAA under s 473CB(1)(c) as specifically relevant to the particular fast track review decision”?
Question 11: Can it be said that “the Minister’s contention of necessity was also answered by the fact that if a judgment disclosed irrelevant and prejudicial material and other matters relevant to the IAA’s discharge of its functions, the Secretary could provide the IAA with a redacted version of the judgment in which the material a court had found to be irrelevant and prejudicial could be masked”?
Question 12: If the answer to Question 11 is ‘yes’, does this mean that, “in order to avoid a reasonable apprehension of bias the Secretary must only provide the IAA with a redacted version of a judgment if it contains references to material a court has found to be irrelevant and prejudicial to the applicant, and which resulted in a first IAA decision being vitiated on the ground of a reasonable apprehension of bias”?
Question 13: Can it be said that “the fact and content of any response to the irrelevant and prejudicial material might be highly relevant to the application of the test for a reasonable apprehension of bias”?
Question 14: Can it be said that “visa applicant cannot enhance the possibility of an apprehension of bias by refusing to provide comments on prejudicial information”?
Question 15: If the answer to Question 14 is ‘yes’, does it “mean that the circumstances in which an applicant did not comment and whether or not they involve a deliberate refusal to comment despite a reasonable opportunity to do so are irrelevant”?
The FCA answered those questions as follows: