Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: applied
It is presently important to emphasise, as Hayne J did in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [184] that the development and application of the test of reasonable apprehension avoids the need for a court: ... to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question. 35 Because of the manner in which the case was originally put, it is appropriate to refer as well to the further observation of Hayne J in Jia Legeng (at [185]) that: Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case. 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman , was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly , despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly , it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally , it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 51 As with the Eastman case, I regard the circumstances of this matter as distinctive. While they may be able to be pigeon holed within the four "elements" referred to by Hayne J in Jia Legeng as the applicant first contended, that process does not sufficiently accentuate what in my view are the essential concerns which the unusual course of conduct followed in this matter exposes. These are to maintain the integrity of the Tribunal's processes and procedures and to provide public reassurance of that integrity.