Federal Court (Full Court). Secretary provided the IAA with allegations from police and police's decision not to prosecute the Appellant. Those materials were irrelevant to the IAA's task and the Appellant knew they had been provided. The IAA afforded the Appellant an opportunity to address the allegations in those materials, accepted 'new information' from him that no charges would be laid, recognised that the police materials were irrelevant and expressly said it gave them no weight. Was there nevertheless a reasonable apprehension of subconscious bias? Does a reference to relative safety necessarily bespeak error?
The IAA found as follows:
5. I am satisfied that both the police advice and the news article postdate the delegate’s decision. I am satisfied the new information provided by the applicant was not and could not have been provided to the delegate before the decision was made under s.65 of the Act. They were recent developments and highly relevant to his claims, specifically the volatile situation in Afghanistan and the current status of the police investigation into the applicant.
...
17. The delegate placed some adverse weight in relation to the applicant’s evidence about the potential police charges and the seriousness of those charges, although the relevance of those charges to the applicant’s individual claims is not apparent. Whatever the case, the applicant has since provided documentation that indicates the charges are not currently being pursued by Victoria Police. I accept his explanations why he was initially not forthcoming about these matters until the latter part of the interview, and I have given no weight to these matters in my assessment of his evidence or his credibility".
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Might a fair-minded lay observer reasonably apprehend that the IAA might not have brought an impartial mind to the question whether the appellant had a well-founded fear of persecution on return to Afghanistan?
Question 2: Was there a “logical connection” between the “identified thing” (here, the material about the possibility of police charges) and “the feared deviation” from deciding on the merits whether the Appellant had a well-founded fear of persecution?
Question 3: Was the IAA's finding at [5] of its reasons that the police materials were "highly relevant" to the Appellant's claims a finding that they were relevant to his claims of persecution or fear of harm?
Question 4: How can the principles concerning internal relocation be described?
Question 5: In CGA15, the FCAFC held as follows: "It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B". Does it follow that, whenever a decision-maker refers to relative safety, it is making the error described in CGA15?
The FCAFC answered those questions as follows: