Silence and Bias: CNY17 v Minister for Immigration and Border Protection  HCA 50
From the High Court of Australia, a fascinating case on bias, resulting in a narrow 3-2 win for an immigrant who had been refused a protection visa: CNY17 v Minister for Immigration and Border Protection  HCA 50. The split on the Court illustrates how difficult applying the rule against bias can be and, in general, the case provides yet another illustration of the thin line between process and substance in the law of judicial review of administrative action.
Under Australia’s Migration Act, ministerial immigration decisions described as “fast track reviewable decisions” are subject to an automatic merits review by the Immigration Assessment Authority. Prior to this review, the Secretary of the Department of Immigration and Border Protection must provide the Authority with his findings of fact, his reasons, his evidence, information provided to him by the applicant and “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”.
Kiefel CJ and Gageler J (who dissented on the merits) laid out the “not-uncommon scenario” (at para. 9) which had given rise to the present appeal:
[A] delegate of the Secretary gives to the Authority a large amount of material contained on a departmental file relating to the referred applicant. Some of the material which the Secretary gives to the Authority is not capable of rationally affecting assessment of the probability of the existence of any fact about which the Authority needs to make a finding in reviewing the referred decision. That material is nevertheless prejudicial to the referred applicant in the sense that the material might be argued to be capable of founding an inference that the referred applicant is a person of bad character or might be interpreted as indicating that the referred applicant is a person who, in the view of the Secretary or of one or more officers of the Department, has been shown by his or her conduct or associations to be a person unworthy of being granted permission to remain in Australia.
Without requesting new information and without interviewing the referred applicant, the Authority conducts a review which results in the Authority making a decision affirming the decision to refuse the referred applicant a protection visa. Unsurprisingly, given the irrelevance of that material to the review, the Authority’s written statement of reasons makes no reference to the irrelevant but prejudicial material given to it by the Secretary (at paras. 9-10).
The problem here is the inclusion of irrelevant but prejudicial information in the package sent by the Secretary to the Authority, a problem amplified by the Authority’s failure to expressly discount the irrelevant but prejudicial information in its reasons. It is especially difficult to characterize this problem: has the Secretary acted unlawfully (or, say, legally unreasonably) in including all the irrelevant but prejudicial information in its reasons, or has the Authority acted unlawfully (or, say, procedurally unfairly) by reaching a decision through a process tainted by irrelevant but prejudicial information? Is it a problem of substance, or procedure? And if it is a problem of procedure, is it a problem of bias or of unfair procedures?
The majority characterized the problem as procedural and, specifically, as one of bias. The implication of this characterization of the problem was that the resolution of the case would therefore turn on the apprehension of bias, as Nettle and Gordon JJ explained:
The test for apprehended bias requires the court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. These points can be, and often are, considered before the decision is made. Here, they could have been considered as soon as the IAA was given the material by the Secretary. The test does not depend on anything which happens at the time of decision, or later (at para. 69, emphasis original).
And the problem was the inclusion of prejudicial information:
The material included assertions that the appellant had a history of aggressive or challenging behaviour, had some link to investigations of a “riot” and was himself the subject of investigations for unspecified matters, had been of interest to “Det Intel”, and had been refused bridging visas in the past. These matters had not been disclosed by the appellant in his visa application, and, in many cases, were information of which the appellant was not even aware. Nor were they disclosed in the reasons for the delegate’s decision. There is a risk that such information would lead a decision-maker in the place of the IAA to have a bias against the appellant, possibly by thinking that the appellant is not a fit person to hold a visa or that the appellant would be a danger to the community (at para. 96. See also Edelman J’s detailed description at paras. 119-124).
As against this, Kiefel CJ and Gageler J dissented, on the basis that while one might question the judgement of the official who included the irrelevant but prejudicial information in the package sent to the Authority, the fair-minded observer would give the Authority the benefit of the doubt:
[T]he hypothetical fair-minded lay observer would not regard the revelations and opinions contained in the 48 pages as so shocking as to give rise to the realistic possibility that knowing of them would play on the subconscious of the Authority to the detriment of the appellant. Just as the Authority could be expected to engage in an impartial evaluation of the merits of whether or not the appellant met the applicable criteria for the grant of a protection visa untainted by the information about the conviction and pending charges which the appellant had included in his form of application properly given to the Authority by the Secretary, so the Authority could be expected to engage in that evaluation untainted by the dashes of colour added by the contents of those pages (at para. 43).
But their conclusion also rested on the basis that “plainly, the 48 pages were looked at and were consciously discarded as irrelevant by the Authority in the course of undertaking its review” (at para. 39). That the Authority did not speak to the point one way or the other suggests matters were not quite that ‘plain’. To be fair to the dissenters, the presumption of regularity means that a reviewing court (aka the fair-minded observer) should not too lightly think ill of an administrative decision, but it is easy to appreciate why the majority conclusion that the addition of irrelevant but prejudicial information to the applicant’s file left an indelible stain on the process. Regardless of one’s views on whether the Authority was biased in this instance, this case undoubtedly illustrates the difficulty of determining when the contemporary, context-sensitive rule against bias has been breached.
It also illustrates the difficulty of characterizing procedural problems which arise in complex legislative and regulatory schemes. The rule against bias is ordinarily concerned with attitudes and conceptions which pre-date a decision-making process. Here, the apprehension of bias arose during the decision-making process. It was not that the Authority had formed a view, in general, as to whether people like the applicant should generally receive a negative outcome, but that the process was tilted against him. Indeed, Nettle and Gordon JJ’s general remedy for the problem was to provide someone in the applicant’s position with a right of reply to any irrelevant but prejudicial material (at para. 102). Even here an applicant might fear, with attention drawn to the prejudicial information, that the damage had already been done. But the fact that Nettle and Gordon JJ created a remedy in the interstices of the decision-making process suggests that the primary problem was one of fair procedures writ large, not simply one of bias.
Beyond this, the case illustrates the thin line between process and substance. For perhaps the problem here was not best characterized as a procedural one. Rather, would it not make more sense to say that the Secretary acted substantively unreasonably in including irrelevant but prejudicial information in the package sent to the Authority? Procedure, after all, can only remedy so much; the fault here lay mostly with the Secretary, for he was the person who had failed in his duty to provide the Authority with appropriate information.
Lurking in the background here is the possibility that the irrelevance of the prejudicial information might mean that its inclusion is immaterial to the outcome (at para. 15, per Kiefel CJ and Gageler J). After all, if the information was irrelevant, how could it have affected the outcome of the Authority’s consideration of the applicant’s file? But this risks assuming that which is to be proved, namely whether the outcome might have been different had this information been excluded. Therefore, I think Edelman J was right to observe (based on a concession by the Minister: para. 129) that the only type of materiality at issue here could be that relating to the seriousness of the error complained of. Accordingly, the pertinent materiality threshold must have been surmounted, as the inclusion of irrelevant but prejudicial information can only been as serious (for more on materiality, see here).
For more on this fascinating case, see Matthew Groves, (2019) 41 Sydney Law Review 383.
This content has been updated on March 3, 2020 at 16:12.