Waiving apprehension of bias claim?

Federal Court (Full Court). Can it be said that, in the context of a review by the IAA, "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"? Does BVD17 suggest that non-compliance with presidential directions made under s 473FB can have jurisdictional error implications? Are the factors in 473DD(b) mandatory considerations for the purposes of s 473DD(a)? Are those factors exhaustive of what might constitute “exceptional circumstances”? Did Appellant waive claim to apprehension of bias by himself providing the IAA with prejudicial material also provided by the Secretary? And more...

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Can it be said that, in the context of a review by the Immigration Assessment Authority (IAA), "a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the “threshold of materiality” so as to constitute a jurisdictional error"?

Question 2: Does BVD17 suggest that non-compliance with presidential directions made under s 473FB of the Migration Act 1958 (Cth) can have jurisdictional error implications?

Question 3: Previous FCAFC decisions have held that the factors in 473DD(b) may assist the IAA in deciding whether it is satisfied, for the purposes of s 473DD(a), that “exceptional circumstances” exist in relation to its consideration of “new information”. Are those factors mandatory considerations?

Question 4: Are the factors in 473DD(b) exhaustive of what might constitute “exceptional circumstances”?

Question 5: Is the IAA under a "duty to give reasons in respect of its presence or absence of satisfaction for the purposes of s 473DD of the Act in relation to the consideration of “new information” for the purposes of that review"?

Question 6: Can it be said that, where "an administrator chooses to give reasons, in the absence of any obligation to give reasons at all, let alone to give detailed reasons, a court conducting judicial review (or one hearing an appeal from such a court) must be astute not to infer jurisdictional error from what that administrator has not said in the reasons given"?

Question 7: In error, the Secretary provided the IAA with prejudicial material that was irrelevant to the review in question, namely that the Appellant had been charged with a criminal offence. However, the Appellant's representatives had previously provided the IAA with that same material anyway. The only difference is that the material provided by the Secretary labelled the alleged conduct underpinning the charge as "a major incident". Could it be said that the material provided by the Secretary vitiated the IAA's decision with jurisdictional error in that it created a reasonable apprehension of bias on the part of the IAA?

Question 8: Can it be said that, both in the context of judicial and non-judicial exercise of power, "if a person is aware of the circumstances that may give rise to the disqualification of a decision-maker on the basis of an appearance of bias but nonetheless acquiesces in the process of decision-making by not taking objection, ordinarily that person will be held to have waived the objection"?

Question 9: If the answer to Question 8 is "yes", can it be said that, "in the context of an exercise of judicial power, there may be cases where the circumstances are just so egregious that a public interest in a fair hearing and the appearance of that must override any waiver by the parties"?

Question 10: If the answer to Question 9 is "yes", would the same principle applyin relation to an exercise of administrative power?

Question 11: If the answer to Question 8 is "yes", can it be said that it would "be a necessary corollary of informed acquiescence occasioning waiver that a party who has deliberately created and made a submission about the circumstance said to give rise to an apprehension of bias on the part of an administrative decision-maker cannot later assert that, reasonably, there is such an apprehension"?

Question 12: If the answer to Question 11 is "yes", can it be said that, "without more, the repetition of that circumstance by another ought not to lead to any different conclusion"?

The FCAFC answered those questions as follows:

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