QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2022] HCATrans 130

[2022] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M84 of 2021

B e t w e e n -

QYFM

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 12 AUGUST 2022, AT 11.27 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances.

MR E.M. NEKVAPIL appears with MR N. BOYD‑CAINE for the applicant.  (instructed by Zarifi Lawyers)

MR A.F. SOLOMON-BRIDGE appears for the first respondent.  (instructed by Clayton Utz)

There is a submitting appearance for the second respondent.

GAGELER J:   The Court would be assisted by hearing from you, Mr Solomon‑Bridge, in the first instance.

MR SOLOMON-BRIDGE:   If it please the Court.  The Minister’s opposition to special leave rests on two independent bases.  First, that the case presents as a poor vehicle for determination of most of the special leave questions, the third question perhaps being the exception, and indeed I say for the first special leave question it is an incompetent vehicle.  Secondly, the Minister of course says that there are insufficient, indeed poor, prospects of the applicant succeeding on the proposed appeal.  I do not propose to address your Honours on the dispensation with time issue – it is set out in the written response – other than to confirm that the Minister does not say he is prejudiced by the delay here, which was two months and eight days.

If I might turn first to the first special leave question, which is concerned with the procedure adopted by the Full Court and Justice Bromwich.  That was, on any view, the customary approach which was adopted here; that is to say that Justice Bromwich entertained and then disposed of the disqualification application himself and indeed, as I have set out in the response, that has been the procedure adopted by this Court in Kartinyeri and Unions NSW.

The Full Court was not challenged on its adoption of the customary approach.  I do not rely on that as a form of waiver, but it has meant that this Court is now deprived of what the Full Court’s analysis might have been as to the appropriateness or, indeed, lawfulness of the approach now suggested by the applicant.

I say “lawfulness” because four members of this Court in Ebner expressly doubted that a judge might have power to determine whether a coordinate brother or sister judge was affected by apprehended bias.  Now, that was in the context of disqualification of primary judges, but those doubts, I say, must equally apply to the power of members of the same bench to prevent any other member from sitting.  Indeed, those are the doubts expressed in the United States authorities.  The policy matters provided ‑ ‑ ‑ 

GAGELER J:   Mr Solomon‑Bridge, have you looked at the House of Lords decisions in the Pinochet litigation in this context?

MR SOLOMON-BRIDGE:   I have looked at that Pinochet decision, although I cannot say to your Honour I looked at it yesterday.  So, I am afraid to say, your Honour would have to put a particular proposition from that case for my response.  But, perhaps in the context of what I have just said, that might not be useful.

I think I can accept that, as the application says in his application, it is not the universal practice across the common law world that the Australian autochthonous practice is and, indeed, not only the House of Lords case to which your Honour refers, but also there is the Privy Council decision concerning the Bahamas Case relied upon for other purposes in terms of materiality here.

STEWARD J:   Mr Solomon‑Bridge, do you agree that, at the very least, the question about how appellate courts should deal with applications for appended bias, that that question is at least interesting, if not important?

MR SOLOMON-BRIDGE:   Can I answer that question in this way, your Honour?  I can only, in a sense, say to your Honours, as I have said in the response, that your Honours’ consideration on appeal of this question would not be – it would only be at the level of dicta because your Honours would not be seized of – and certainly not an interlocutory appeal from the procedure adopted by the Full Court, but nor would your Honours have cause to consider in a binding way whether the procedure adopted by the Full Court was indeed lawful.

So, whether or not it is interesting, as your Honour Justice Steward has put to me, I say it is essentially an idle question, with respect to the applicant and to your Honours, because it is simply not a question that would fall for consideration by this Court on appeal.  In doing so, I have of course challenged the competency of the first proposed ground of appeal.  The applicant, in his reply, says, the procedure adopted somehow infected the Full Court’s judgment and, on that basis, he is entitled to complain of that procedure.

But in my submission, if your Honours were to ultimately find that this court below was not affected by apprehended bias, then your Honours would not have cause to look at, separately, whether or not the procedure adopted by that court was proper, appropriate or the like.

It could be tested in the further way that, even if your Honours preferred a different procedure and perhaps considered this one erroneous, your Honours still would not grant the relief prayed for, which is that the judgment below be set aside and that there be a rehearing, because the procedure adopted by the court below simply has no logical connection with that relief – that the decision below was either affected by bias or it was not. 

Indeed, to test that proposition in a further way, suppose Justice Bromwich had not alerted the parties to this issue at all and it was discovered only post‑hearing, the omission of any procedure to determine disqualification certainly could not be complained of separately in this Court and so the fact that some procedure was adopted cannot put the applicant in any better position.

It is not a direct answer to your Honour’s question, but it is effectively submitting why the apparent interesting aspects of this, accepting that may be so, simply would not fall for a definite decision by your Honours on appeal.

That, if I may say so, and the fact that it may never fall for a binding decision by this Court if the logic of what I have just said holds true, in my submission, is evidence, if anything, that these are matters of practice and procedure whose appropriateness and propriety are really matters for the Court’s concern, and do not give rise to cause for appellant intervention.

STEWARD J:   Mr Solomon-Bridge, when you say we would not be seized of the matter in a final or binding way, would we not need, at the very least, to consider the propositions in Sir Anthony Mason’s learned article to which the applicant has referred, that it is no answer to an appeal of this kind, to say that the decision is otherwise correct in all respects, because the appellant is entitled to a court that is properly constituted and, unless properly constituted, he has not had a fair hearing?

MR SOLOMON‑BRIDGE:   Yes, but your Honour’s observation is directed to a different issue, if I may say so, with respect, which is – the issue of process and procedure is separate and distinct from whether or not the body was properly constituted at all, and that stands as an objective fact to be determined on a standard of correction by this Court and is simply independent from any consideration of the procedure that that body used to determine the question for itself.  What your Honour has put to me in terms of the radical right, if I can put it that way, to a fair hearing is not – exists independently of the process for that body’s judgment of that question.

Now, it is convenient to deal at this point with the futility question, which I do raise in opposition to the application.  Leaving aside – well, the proposition that your Honour has put to me from Sir Anthony Mason’s article, with respect, is too broad because, certainly, apprehended bias admits of waiver as a discretionary defence, but leaving to one side whether futility could ever be raised in opposition to a bias ground separate from materiality, in my submission, at the special leave stage in that discretionary task it is certainly relevant to your Honours’ consideration that the applicant apparently concedes that no different result would obtain on a remitter of his proceeding.

Now, that was the conclusion apparently arrived at by Justices Keane and Gordon in the Bodycorp case to which I have referred in the response, but at the level of special leave those futility issues, I say, loom large.  If I can move – I suspect that is all I wish to say about ground ‑ special leave question 1, but ‑ ‑ ‑

GAGELER J:   Mr Solomon‑Bridge, can I just ask you a factual question.

MR SOLOMON‑BRIDGE:   Yes.

GAGELER J:   The bias application was made, was it, to the Full Court at the commencement of the appeal?

MR SOLOMON-BRIDGE:   I appeared as appellate counsel there, your Honour, and I can say that it followed in the following way.  An email was sent to the parties from Justice Bromwich, his chambers, on the morning of the appeal drawing attention to his having appeared at the conviction appeal.  At the commencement of the appeal, either at the invitation of the presiding judge - Justice McKerracher, I believe it was – or  perhaps immediately by the applicant’s counsel, he applied for disqualification of Justice Bromwich.

The presiding judge, if I am not mistaken, implied, if not expressed, that those submissions ought be directed to Mr Justice Bromwich, although all of the members remained on the link, as it were, and then they retired – well, Mr Justice Bromwich retired to consider the position, the link resumed and he delivered his oral reasons as to why he would not disqualify himself.  There of course was no order, let alone by the Full Court, as such.  But it was clear that it was a decision for Justice Bromwich alone and it was clear that the presiding judge assumed that to be the case.  Now, I am not sure if that assists with your Honour’s question, but that is ‑ ‑ ‑

GAGELER J:   Yes, thank you.  It is not supplied with the transcript, I think, in the application book.

MR SOLOMON-BRIDGE:   Yes.  There was – I am not sure if the applicant has obtained transcript, but I know it exists and those matters, I trust, will be borne out by a consideration of that transcript.

GAGELER J:   Yes.

MR SOLOMON-BRIDGE:   The second special leave question is concerned with essentially materiality and the numerical unimportance of Justice Bromwich as a member of the court, and the Minister’s response is simply to say that it is effectively a contingent question which depends upon making out the apprehended bias in respect of Mr Justice Bromwich as a first step and that that step does not stand good prospects of being met.  That is the subject of the third special leave question to which I turn now.

Your Honours, this is essentially the substantive bias question.  It is in the nature of things that bias applications will arise in a multitude of contexts.  That this Court has not had to determine precisely this factual situation does not mean, in my submission, the case raises issues of general importance.

To the contrary, it calls for the application of well-trodden principles.  So far as intermediate appellate court decisions go, they all favour the Minister here, Garrett, McCreed and Muldoon are all concerned with presiding judges having either appeared against a criminal accused previously or having indeed been the prosecutor at their trial, and in each case, there was an overshading bias.

It is not suggested here that Justice Bromwich signed the indictment or, indeed, that he had any awareness at all of the applicant’s criminal proceeding until he became counsel at the hearing of the conviction appeal.  At that stage, in my submission, the DPP was not strictly an accuser.  The matter of the applicant’s guilt had been settled by judge and jury, of course, and the applicant was – yes?

GLEESON J:   Mr Solomon-Bridge, is that aspect of the bias application dealt with by Justice Bromwich? 

MR SOLOMON-BRIDGE:   No, because it simply was not raised by the applicant’s counsel, different counsel, below.  The particulars of the bias application below were confined to Justice Bromwich’s personal appearance on the conviction appeal, not as his official role as DPP and it is also for that reason, as you will have seen in the response, that there is perhaps some difficulty in how the now prominent allegation about Justice Bromwich having instituted and carried on the prosecution, how that will be established on a strict appeal, in this Court.

The other point to note of course is that, since Ebner at least, apprehended bias has essentially been a functional principle and it was not suggested – I take it, it is not suggested now, and certainly there is no evidence or basis to infer that Justice Bromwich was actively involved in the prosecution of the applicant at all.  And, in those circumstances, it is difficult to see what the, in a sense, ex officio role or titular role he had, how that would affect the reasonable bystander in circumstances where it simply cannot be proved that Justice Bromwich had any role at that stage of proceedings.

And so, in my submission, the appeal would be focused on Justice Bromwich’s role as defender of the conviction, if I can put it that way, as counsel, and the explanation uncontested now was that his involvement at that stage was simply on a pure question of law concerning the admissibility of a class of evidence, certainly not something which would tend to suggest to the bystander that there was any particular risk in that role that would later infect his Honour’s decision‑making in a separate context in later proceedings for judicial review and appeals therefrom.

Can I just, in that connection, make a couplie of further observations about the chronology.  The first point is that in the applicant’s reply he refers to Justice Bromwich being DPP when the offending took place.  That is not correct.  The evidence before the Full Court was to the effect that the offending took place in June 2012, and according to publicly available information Justice Bromwich was not appointed until 17 December 2012.

The other point of the chronology is that when the conviction was sustained by the appellate court, the Migration Act did not at that time have the effect that the applicant’s visa would be automatically cancelled.  The provision giving effect to that consequence was introduced at a later time; that is section 501(3A).  Up until that time, it only exposed the applicant to a risk of discretionary cancellation, not an automatic consequential cancellation.  The other ‑ ‑ ‑ 

GLEESON J:   Sorry, you are saying that is at the time of the hearing of the Victorian Court of Appeal, in August 2014?

MR SOLOMON-BRIDGE:   Yes, and at the time of its disposition in – I believe it was November 2014.  At both times there was no automatic cancellation that followed from the conviction or its being sustained by that appellate court.  That commenced in December 2014, although I accept that because of that conviction at those relevant times the Minister could, in a discretionary way, cancel the visa pursuant to powers under subsection (3) should he not be satisfied that the applicant passed the character test.  But that was otherwise a matter that might have been obscured by the parties’ submissions.

Noting the time, can I otherwise just say on that point, special leave question 3, that the applicant does not contend for some per se

incompatibility.  He accepts that matters such as the effluxion of time between the two proceedings might be relevant in case such as this and so, for the reasons I have expounded, the hypothetical bystander really would not appreciate any requisite risk of impartiality of the kind that would grant relief on the appeal.  If your Honours please.

GAGELER J:   Thank you, Mr Solomon‑Bridge.  The Court will take a short adjournment at this stage.

AT 11.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.56 AM:

GAGELER J:   Mr Nekvapil, there is one topic we wish to raise with you, and it relates to your formulation of the third special leave question and the complaint about the first variation of that question lying outside the scope of the application that was made to the Full Court.  Do you accept what was said by Mr Solomon‑Bridge in that respect?

MR NEKVAPIL:   Could I just clarify, does your Honour mean that it was not raised by counsel below that the learned judge had also been director at the time of instituting the proceeding and carrying on the proceeding?

GAGELER J:   There seemed to be two aspects of his argument in that respect.  One was that that was not raised, that the application was really made on the basis of him having been counsel on the appeal; but also, he suggested, as I understood him, that there was a factual inquiry that may be at least implicit in the way you frame that question as to the involvement of Justice Bromwich in the actual institution and the actual carrying‑on of the prosecution as distinct from his purely titular role.

MR NEKVAPIL:   Thank you.  I understand, your Honour.

Your Honours, in Ebner v Official Trustee at 205 CLR 337, at paragraph 71, the joint reasons explained – if I can paraphrase – that whatever the process by which an allegation of apprehended bias would arise here if your Honours granted special leave on appeal to the High Court, there will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can.

We say that is particularly apposite in a case like this, where counsel appearing below was confronted with very little time, with an email identifying the fact of one of the judges having conducted the previous proceeding as Director.

In those circumstances, on one view, which has been taken in some of the academic literature, it might have been appropriate for someone – the court or the judge – to call for the file so that time could be taken to identify all of the relevant facts but, in any event, especially in those circumstances, the proposition in Ebner that there should be a full opportunity on the appeal applies a fortiori, we would submit that Suttor v Gundowda or Coulton v Holcombe is really not an appropriate frame of reference for a question like this, and especially one arising at such short notice.

Similarly, your Honours would have noticed that in the reasons that his Honour gave there is no consideration of the incompatibility type of reasoning which was given an extended application in Isbester and for similar reasons we would submit that the applicant would not be precluded on an appeal from relying on that line of reasoning merely because that was not the way that it was raised or dealt with on the spot in the running below.

GAGELER J:   Thank you.

GLEESON J:   Can I ask, does that mean that there are some facts that you are going to seek to prove in support of the appeal?  How is this going to work?

MR NEKVAPIL:   Your Honour, I think that the single main fact that has been discussed previously is the indictment.  Now, the indictment is a public record and we would seek on the appeal to put it before the Court.  Now, section 6(3) of the DPP Act makes it clear as a matter of law that the indictment had to be either signed by the Director personally or signed in his behalf.  So, in a sense it is something one would infer from the statute in any event.  So, we do not see substantial controversy about that.

As to personal involvement or otherwise by the Director, our case will not rely on any personal involvement.  It is not a case like Williams v Pennsylvania where there was evidence about a memorandum that the District Attorney actually saw and signed.  We rely on incompatibility by reason of holding the office, it is structural – it is to do with the roles at that point.

And then we do – and will – rely on a more factual inference about the appeal itself, but only to the extent of what can be seen from the appearances recorded in the Victorian report and observations made, in particular by the judge of appeal who originally granted leave on the papers. 

We will not seek to go beyond that into a factual account of the running of the appeal or the involvement of his Honour.

GAGELER J:   That falls within the scope of the way in which the bias application was made to the Full Court, does it not?

MR NEKVAPIL:   That latter aspect certainly does, yes.

GAGELER J:   In relation to the first way in which you frame the third special leave application, as I understand, the way you put it is that you rely solely on Justice Bromwich holding the office of Director of Public Prosecutions at the relevant time.

MR NEKVAPIL:   That is correct, your Honour.

GAGELER J:   You do not seek to draw any inference of fact as to his involvement in the institution or prosecution?

MR NEKVAPIL:   Not specific fact, if I can put it that way, only institutional fact; that is, that, for example, the Court might infer – would properly infer – that there are processes in place such that an indictment is not signed outside of a process over which the Director has oversight, but we would not seek any specific factual inference about his involvement in this matter.

GAGELER J:   There is something of a disconnect between the general way in which you frame the second ground of appeal and the more specific way in which you seek to articulate this branch of your third special leave application.  One could perhaps be seen as a particularisation of the other.

MR NEKVAPIL:   Yes.  Your Honour would ‑ ‑ ‑

GAGELER J:   In granting – sorry.  Go ahead, Mr Nekvapil.

MR NEKVAPIL:   I just wanted to say, your Honour would recall in Isbester the joint reasons at paragraph 49 and, your Honour, at paragraph 61, that, in effect, it was said that Ebner is still the applicable test for an incompatibility case, it is just that it may have ramifications for the second step in the Ebner test.  So, we would submit that it is accommodated within our proposed ground of appeal, but it might be more precisely put in terms of incompatibility.

GAGELER J:   Mr Nekvapil, there will be an extension of time in which to file the application for special leave to appeal, and there will be a grant of special leave to appeal.  That said, you should not take it for granted that the manner in which you propose to argue the second ground of appeal, by reference to the first iteration of your third special leave question, will be uncontroversial.

You need to take into account that an appeal from the Full Court to this Court is an appeal in the strict sense.  You are bound by the factual record of the court below, and you need to take into account the principles in Coulton v Holcombe to which you have already referred.  So, in granting special leave to appeal, nothing that we are now doing will save you from needing to contend with those principles to the extent that you seek to pursue the argument foreshadowed in that part of your third special leave question.

MR NEKPAVIL:   I understand, thank you your Honour.

GAGELER J:   Very well.  The Court will now adjourn until 12.30 pm.

AT 12.07 PM THE MATTER WAS CONCLUDED