Arw15 v Minister for Immigration

[2015] FCCA 2595

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARW15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2595

Catchwords:
PRACTICE AND PROCEDURE – Recusal application – apprehended bias – statistical analysis of past judgments – past conduct evidenced by previous decisions – appellate process of superior Courts – conduct not relevant to establishing apprehended bias – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Commonwealth of Australia Constitution Act, ss.72, 75(v)
Federal Court of Australia Act 1976, s.24
Federal Circuit Court of Australia Act 1999, s.9, Sch.1

ALA15 v The Minister [2015] FCCA 2047
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Schechter v Migration Review Tribunal [2015] FCAFC 87
SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88
SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 AHY15 v Minister for Immigration & Anor supra
SZVDH v Minister for Immigration and Border Protection [2015] FCAFC 102
Assistant Commission Condon v Pompano Pty Limited (2013) 252 CLR 38

Applicant: ARW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1274 of 2015

Judgment of: Judge Street

Hearing date: 21 September 2015

Date of Last Submission: 21 September 2015

Delivered at: Sydney

Delivered on: 21 September 2015

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Solicitors for the First Respondent: Ms S Burnett
Clayton Utz

ORDERS

1. The application for recusal is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1274 of 2015

ARW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) and, at the commencement of the hearing, Mr Young, counsel for the applicant has asked the Court to recuse itself. Whilst ordinarily an application in a case should be filed, I accept that this was an appropriate case for Mr Young of counsel to raise the matter as he did on the day of the hearing, although this would not generally be the position. I dispense with the need for a formal application.

2. For reasons of efficiency and justice in this case, I accept the course proposed by Mr Young of counsel in seeking to rely upon identified statistics as conduct said to be set out in ALA15 v Minister for Immigration and Anor [2015] FCCA 2047 rather than filing a fresh affidavit. The decision was tendered before the Court and I treat the statistics identified in the decision in ALA15 as if facts that had been proved by affidavit and admitted subject to relevance.  For reasons given in that decision, the statistics were rejected as not being relevant to an application for recusal.

3. In this case, Mr Young of counsel identified that the application for recusal was on the grounds of apprehended bias founded on the combination of both the statistics identified in the decision of ALA15, which was tendered and marked exhibit C and based on conduct gleaned from other decisions of the Full Court of the Federal Court of Australia that were also marked as exhibits. Mr Young of counsel, accepted that statistics on their own, would generally be insufficient to make out any case of apprehended bias. Mr Young of counsel relied upon the statistics together with what was said to be the conduct evidenced by the Full Court decisions that were tendered in evidence.

4. Mr Young of counsel identified that those Full Court decisions were ones in which the process of this Court had been the subject of criticism and some criticism was clearly expressed in strong terms.  Mr Young of counsel said that there were particular passages in those decisions together with the statistics by reason of which a fair-minded lay observer might infer that there was conduct by this Court in its approach to procedural fairness whereby this Court might not bring an impartial and independent mind to the determination of this matter on its merits.

5. Mr Young of counsel identified that part of the criticism in one of the cases had involved a reference to the High Court’s decision in the Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Mr Young of counsel said that that decision of the Minister for Immigration and Citizenship v Li identified principles that were relevant to the present case in relation to the two central grounds raised by the applicant. The first concerns adverse findings of credit based on a publication that the Tribunal found to be forged which the applicant contends was a finding that was unreasonable. The second ground concerns the alleged failure of the Tribunal to make further inquiry as to the genuineness or authenticity of what was found to be a forged publication. 

6. Mr Young of counsel said that in combination, the conduct reflecting a denial of procedural fairness found by the Full Court decisions as tendered together with the conduct identified by the reference to the statistics would give rise to an apprehension of a want of neutrality by the Court in matters under the Migration Act 1958 and that this case was a matter arising under that Act.  Mr Young of counsel identified first the decision in Schechter v Migration Review Tribunal [2015] FCAFC 87 and, relevantly, relied upon what was said at [48] to [56], as well as at [69] and [78] as the relevant source of alleged conduct by this Court.

7. The second decision relied upon by Mr Young of counsel was SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88 and, relevantly, Mr Young of counsel relied upon [49] and [61] in relation to what was said to be the adverse findings relating to this Court and a want of procedural fairness in that case. Mr Young of counsel also relied upon a notation in relation to consent orders in respect of a published reasons identifying in the notation the grounds for the consent orders in SZVDH v Minister for Immigration and Border Protection [2015] FCAFC 102.

8. Mr Young of counsel identified that at [3] of the reasons for judgment the Court had picked up that notation and made reference to the earlier decision of Schechter in which the Court had found a denial of procedural fairness had occurred in that case. Mr Young of counsel also relied upon SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 at [143-144], [148-150], [152] and in AHY15 v Minister for Immigration & Anor supra at [153-155] as evidencing a denial of procedural fairness. Mr Young of counsel put that the findings of denial of procedural fairness evidences an unfair process by reason of which a fair-minded lay observer might reasonably apprehend predetermination by this Court in matters under the Migration Act 1958 rather than predisposition. Mr Young of counsel accepted that the principles to be applied were accurately summarised by the Royal Commissioner Dyson Heydon AC QC, in his reasons for ruling dated 31 August 2015 at [34-49]. 

9. I do not accept that the statistical analysis is material that is relevant in identifying conduct alleged to support a ground for recusal for apprehended bias. For the same reason as identified in ALA15 v Minister for Immigration and Anor [2015] FCCA 2047, I regard the statistics identified in that decision as being irrelevant. Further, I find that the statistics fail to identify any conduct by reason of which a fair-minded lay observer might reasonably apprehend that this Court might not bring an impartial and independent mind to the determination of this matter on its merits. I do not accept that the statistics become relevant to identify conduct to support the alleged grounds for recusal by combining the same with what is said to be conduct identified by findings of denials of procedural fairness by the appellate Court in the particular cases tendered or the criticisms of the processes found by the appellate Court in the particular cases tendered.

10. I reject the proposition that the statistics are material that can be taken into account in combination with the decisions of the Court to establish or to attempt to establish a want of neutrality.  There is no logical nexus between irrelevant statistics and the criticisms identified in the particular decisions to which Mr Young of counsel referred. 

11. In relation to the decisions to which Mr Young of counsel referred, I accept that they identify, in particular cases, a finding by the Full Court that there was a denial of procedural fairness found by that appellate court.  A fair-minded lay observer would be well alive to the important role played by courts in the independent and impartial exercise of the judicial power of the Commonwealth.

12. A fair-minded lay observer would be well alive to the qualifications for appointment and oath of office sworn by a justice of the Federal Circuit Court of Australia pursuant to s.9 and Schedule 1 of the Federal Circuit Court of Australia Act 1999 in respect of an appointment under s.72 of the Constitution. A fair-minded lay observer would also be well alive to the importance of published reasons by a court in the exercise of the judicial power of the Commonwealth and the availability of those published reasons to inform the parties as to the reasons for the quelling of the controversy, as well as to facilitate rights of appellate review.

13. The publication of reasons for the exercise of judicial power of the Commonwealth also permits public catharsis of the process of the administration of justice, which public catharsis is essential for upholding public confidence, both in the courts and in the exercise of the judicial power of the Commonwealth.

14. It is not the role of a lower court to express comment or criticism of the reasons of a higher court. It is the Constitutional duty of all courts, in the exercise of judicial power of the Commonwealth, to maintain public confidence in all courts within Chapter III. All courts within Chapter III are Constitutional institutions that are essential for the maintenance of the administration of justice and the rule of law, as entrenched in the Constitution.

15. The supremacy of the rule of law, as entrenched by the Constitution, is essential to the maintenance and preservation of our Constitutional democracy. It is of fundamental importance to the rule of law that through the democratic process the people can change the law. Under the rule of law in a democracy, the law is made by the people for the people, and can be changed by the people.

16. It is of fundamental importance in our Constitutional democracy that public confidence is maintained in the independent and impartial judiciary, who exercise judicial power of the Commonwealth as invested in all Courts within Chapter III. 

17. The twin principles of judicial independence and supremacy of the rule of law are entrenched in the Constitution. There cannot be judicial independence without supremacy of the rule of law, and there cannot be supremacy of the rule of law without judicial independence. The judicial power of the Commonwealth must be exercised impartially by independent judicial officers. All judicial officers of this Federal Circuit Court of Australia swear an oath, as identified above to well and truly serve in the office of a judge of this Court and to do right to all manner of people according to law without fear or favour, affection or ill will .

18. This Court has sworn that oath.  As judicial independence is essential for the maintenance of public confidence in both courts, as Constitutional institutions, and in the exercise of the judicial power of the Commonwealth in matters before Chapter III courts, appearance of judicial independence is as important as actual independence. 

19. The Federal Court of Australia Act 1976 pursuant to s.24 is vested with jurisdiction to hear and determine appeals from this Court. The appellate Courts, the subject of the decisions identified by Mr Young of counsel in this case, were exercising judicial power of the Commonwealth to resolve the controversies raised by the parties in the particular appellate matter. The lower court plays no role whatsoever in that appellate process. This is due to the neutrality of the lower court.

20. The nature of a case in an appellate forum will almost inevitably be different from the nature of a case in the court below, not just by reason of the different jurisdiction that may be being exercised by the appellate Court, but also because of the particular alleged errors of law or fact raised by the grounds of appeal, where there is not a right of full review by hearing de novo.

21. The appellate jurisdiction may in some cases be even more confined to questions of law. There is no exercise of the judicial power of the Commonwealth that is not subject to either appellate review or control through s.75(v) of the Constitution. That appellate review must be exercised in accordance with the same openness as reflects the exercise of the judicial power of the Commonwealth in the lower courts. The controversy in the appellate review of this Court pursuant to s.24 of the Federal Court of Australia Act 1976 is identified in the alleged grounds of appellable error of fact or law in the published judgment of this Court in the particular case. The exercise of that appellate review must determine those grounds and whether there is appellable error of fact or law by the lower court as alleged in the appeal in that particular case.

22. It is by those appellate published reasons and orders that the appellate Courts identify binding principles and provide guidance to lower courts.  It is through those published appellate reasons and orders that the independence and impartiality of the lower courts are maintained. 

23. Criticism of and guidance to a lower court by an appellate court is part of the open administration of justice.  The tenacity, or restraint, of appellate reasons are a public exercise of the judicial power of the Commonwealth and is open to the same public catharsis as the reasons of the lower court. 

24. Strident judicial criticism or staunch guidance, through published reasons, is not of itself conduct by the lower court.  A lower court, the subject of judicial criticism or guidance through published reasons by an appellate court, can be expected, by a fair-minded lay observer, to fully heed the published reasons and to adhere to the neutral role of that court in the application of the rule of law and principles or guidance in future cases, as articulated by the higher Court. A fair-minded lay observer would be aware of the principles referred to above and that published reasons and orders in one matter do not of itself give rise to any reasonable basis for fearing a want of neutrality in a different matter.

25. Whilst I accept Mr Young of counsel’s proposition that the decisions do identify legal principles binding on this Court and do identify criticism of the processes in each particular case, they are each examples of a proper exercise of judicial power in the appellate review of the particular matter entirely consistent with the important role played by the publication of appellant reasons. A fair-minded lay observer would be alive to the importance of those published reasons in relation to maintaining the independence and impartiality of the lower court as well as in articulating legal principles binding on that lower court and providing guidance to that lower court.

26. Mr Young of counsel drew attention to the reasoning of Gageler J in Assistant Commission Condon v Pompano Pty Limited (2013) 252 CLR 38 at [194] in what might be said to be an entrenchment of the American concept of due process. I accept Mr Young of counsel’s proposition that the principles identified by Gageler J have application to every Chapter III court. I accept Mr Young of counsel’s proposition that the principles identified in Minister for Immigration v Li have application to the exercise of judicial power by every Chapter III court. 

27. A fair-minded lay observer would take into account that procedural fairness is not just a process but is, in fact, a legal principle, and a matter upon which articulation of principle is binding by an appellate court on the lower court. 

28. A finding by an appellate court in published reasons of a denial of procedural fairness by a lower court in a particular matter is not conduct by reason of which a fair-minded lay observer might believe that the court below might not bring an independent and impartial mind to the determination of future matters on their merits. In each of the decisions relied upon by Mr Young of counsel, a fair-minded lay observer would be aware that this Court had published reasons and orders for the exercise of the judicial power of the Commonwealth in that particular case. A fair-minded lay observer would be aware that the controversy in this case is a different matter. A fair-minded lay observer would not reasonably apprehend that the appellate finding of a denial of fair process in each particular case was a basis for inferring either a want of neutrality by the lower court in the particular case or a predetermination by the lower court of the particular case.

29. In my opinion, the fair-minded lay observer would appreciate the distinction between predisposition and predetermination in past matters the subject of published reasons and orders. A fair-minded lay observer would also appreciate that the each of the matters the subject of the appellate review relied upon by the applicant where determined by published reasons and orders of this Court in each matter, subject to the rights of appellate review. Further, the fair-minded lay observer would not reasonably apprehend that the finding of a denial of procedural fairness in the lower court by published appellate reasons in each particular case relied upon by the applicant gives rise to any reasonable basis for fearing that this Court might have a predisposition in future cases under the same legislation, let alone a predetermination.

30. In relation to each of the decisions identified by Mr Young of counsel in this case, taken in combination or independently, they do not identify conduct by reason of which a fair-minded lay observer might reasonably apprehend that this Court might not bring an independent and impartial mind to the determination of this matter on its merits. 

31. Further, even if the statistics, which for the reasons I have given are irrelevant, were to be taken into account in combination with the particular decisions upon which Mr Young of counsel relies, they do not give rise to conduct by reason of which a fair-minded lay observer might reasonably apprehend that this Court might not bring an independent and impartial mind to the determination of this matter on its merits. 

32. To the extent that Mr Young of counsel endeavoured to identify the issue of unreasonableness as identified in the Minister for Immigration v Li and its overlap in relation to the denial of procedural fairness found in those cases, and the overlap of issue of unreasonableness raised by the grounds in this case, for the above reasons I do not regard the adverse findings in relation to procedural fairness in those particular cases as conduct by reason of which a fair-minded lay observer might reasonably apprehend that this Court might not bring an independent and impartial mind to the determination of this matter on its merits. 

33. For these reasons, the Court declines to recuse itself.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 22 September 2015