Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: cited
It is unnecessary to refer separately here to the applicable principles other than to note, as I do below, the applicant's primary reliance on the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. 39 As I earlier indicated, the two grounds of this application are that, first, the Tribunal's decision was affected by reasonably apprehended bias and, secondly, denial of procedural fairness. As to the latter ground, as formulated in the application it was that: 4.2.1 The issue of whether the applicant had committed a criminal offence on 1 May 2008 was credible, relevant and significant to the decision on whether or not to affirm the refusal of the visa. As such, the Tribunal was required, as a matter of procedural fairness, to give the applicant an opportunity to respond to information regarding the allegation that he had committed an offence on 1 May 2008. 4.2.3 During the hearing of the application before the Tribunal on 28 November 2008 the Tribunal repeatedly denied the applicant an opportunity to provide a detailed or adequate response to the allegation that he had committed an offence on 1 May 2008. 40 During the course of the hearing there was some movement in, and a coming together of, the grounds. This will become apparent in what follows. (a) Apprehended Bias 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. 49 On both of these issues the reasonable and fair minded lay observer could well consider he or she was being asked to, but was unable to, accept that the Tribunal could satisfactorily bifurcate the information it might possess on both those matters, and that it could reach its conclusion on each by reference, for example, to the three bail breaches while not taking into account in any way the view it had of the significance and character of the 1 May 2008 charge derived from the listening device hearing. While the significance of "subconscious effect" is to be treated with circumspection in procedural fairness cases given the relevant inquiry in such cases: cf Applicant VEAL at [19]; the issues of appearance and judgment in apprehended bias cases are, in my view, differently appointed. They do involve an appeal to the good sense and experience of the reasonably informed and fair minded lay (not judicial ) observer. 50 If the lay observer might experience some difficulty or reserve in accepting the potential efficacy of a self imposed "Chinese wall" in containing a prior formed opinion, that would well be compounded by the somewhat Delphic character of the Tribunal member's concluding comment on the November 2007 warning from the Minister about "any further conduct bringing him within the provisions of s 501": Unfortunately this warning appears to have not been taken seriously. 59 Unlike in Applicant VEAL both the Tribunal and the applicant were aware of the charge and of its being disregarded. As Mr Islam indicated when told it would be so treated "I appreciate it" it was to his advantage. What Mr Islam did not know and was not told, was of the member's participation in the issue of the warrant. The non-disclosure of that participation did not of itself raise a procedural fairness issue. It did set the scene, though, for the applicant's apprehended bias challenge. 60 I will order that: 1. The application be allowed. 2. The decision of the Tribunal be set aside. 3. The matter be remitted to the Tribunal to be determined according to law. 4. The first respondent pay the applicant's costs of the application. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 December 2009 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: VISA Lawyers Australia Pty Ltd Counsel for the First Respondent: Mr P Grey with Mr P Knowles Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear. Date of Hearing: 21 October 2009 Date of Judgment: 18 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1526.html