SZBJP v Minister for Immigration
[2007] FMCA 1570
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1570 |
| MIGRATION – COURTS AND JUDGES – Disqualification – whether judgments in prior judicial review proceedings brought by applicant a reason for disqualification on basis of actual or apprehended bias or otherwise. |
| Migration Act 1958 (Cth) ss.91X, 477 Migration Legislation Reform Act 2005 |
| Bahonko v Nurses Board of Victoria (No.2) [2007] FCA 351 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 231 ALR 663 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Watson; Ex parte Armstrong [1976] HCA 39 Smits v Roach (2006) 228 ALR 262 SZBJP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 590 SZBJP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 390 SZBJP v Minister for Immigration & Multicultural Affairs [2006] FMCA 1098 SZBJP v Minister for Immigration & Multicultural Affairs [2006] FCA 1579 Vakauta v Kelly (1989) 167 CLR 568 |
| Applicant: | SZBJP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2109 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 September 2007 |
| Date of Last Submission: | 11 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the notice of motion is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2109 of 2007
| SZBJP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 9 July 2007 the applicant filed an application in this Court seeking review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a Bridging E (Class WE) Visa. At a directions hearing conducted by a Registrar on 2 August 2007 the matter was listed for hearing before me. On 30 August 2007 the applicant filed a notice of motion seeking the following order:
I like to requesting to hon Court that could you replace someone behalf of Federal Magistrate Barnes which matter is listed for hearing on 11 Sep 2007 at 10.15 am before Federal Magistrate Barnes at Court Room 19G Federal Magistrate Court of Australia.
I heard submissions from the applicant in relation to this application. Counsel for the respondent also made brief oral submissions. After an adjournment I ordered that the application for disqualification be dismissed and indicated that I would give written reasons for this order at a later date. These are my reasons for that order. As these reasons refer to decisions in relation to the applicant’s application for a protection visa he has been identified by the Court-provided pseudonym used in earlier proceedings (and see s.91X of the Migration Act 1958 (Cth)).
The applicant is self-represented and at the time of this application and hearing was in the Villawood Immigration Detention Centre. He did not file a supporting affidavit or specify grounds on which he sought my disqualification, but in oral submissions explained that his concern arose out of the fact that I had heard two previous applications by him to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant him a protection visa. I am told by counsel for the respondent that there has been other litigation by the applicant in relation to his immigration status in which I have not been involved. The applicant took issue with my decisions in those two past proceedings, suggesting that they contained errors, that I had not followed the Refugees Convention and that I had failed to consider the merits of his claim to asylum based on conditions in his country of origin, in particular his claims about difficulties of relocation. He also suggested that I had “favoured” the Federal Government in reaching my decisions, in particular in relation to application of the time limit in s.477 of the Migration Act 1958 (Cth) and that in so doing I had not acted fairly or independently in applying a law that restricted the rights of asylum seekers, but rather had tried to stop the judicial process.
The applicant also appeared to take issue with my failure to address his concerns about his treatment by a government official and by the Department of Immigration. He sought a hearing from someone who would listen to all his points.
While counsel for the respondent submitted that it was not clear that the applicant maintained his opposition to my hearing the case, as part of his submission was that if I did hear it I should hear all of his claims, nonetheless I considered whether I should disqualify myself by reason of actual or apprehended bias or on some other basis.
Insofar as it is intended to be contended that I should be disqualified by reason of actual bias in the form of prejudgment, the applicant must show that my mind is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented (see Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [72] and Bahonko v Nurses Board of Victoria (No.2) [2007] FCA 351 at [45] per Middleton J. The question is not whether my mind is blank, but “whether it is open to persuasion” (Jia Legeng at [71] per Gleeson CJ and Gummow J).
In addition to the issue of actual bias I have also considered whether I should disqualify myself by reason of apprehended bias. In that connection I have had regard to the principles set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ and accepted in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 231 ALR 663 per Kirby and Crennan J at [110] – [111]. I note first that, as their Honours stated in the joint judgment in Ebner [19]:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
Thus a judge should not automatically stand aside at a suggestion of prejudgment or apprehended bias (see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294 per Mason, Murphy, Deane and Dawson JJ). As Mason J stated in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he was likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there was a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there was a reasonable apprehension of bias by reason of prejudgment and this must be quite firmly established.
As stated in Ebner the well-established test of apprehended bias is to the effect that: “a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (at [6] referring to Re Watson; Ex parte Armstrong (1976) 136 CLR 248 and subsequent cases including Johnson v Johnson (2000) 201 CLR 488).
It was suggested in Livesey at 298, in relation to an allegation of apprehended bias in circumstances where the credibility of the critical witness in the case before the Court had been adversely determined in prior proceedings that the reasonable observer is to be presumed to approach the matter on the basis that “ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court”. It is important however that the relevant perspective is that of the “reasonable, intelligent, fair-minded lay observer” (Smits v Roach (2006) 228 ALR 262 at [95] per Kirby J and at [43] per Gleeson CJ, Heydon and Crennan JJ referring to Vakauta v Kelly (1989) 167 CLR 568 at 572 per Brennan, Deane and Gaudron JJ).
Moreover, as stated in the joint judgment in Ebner (at [8]) the application of the apprehension of bias principle requires two steps:
First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits… … Only then can the reasonableness of the asserted apprehension of bias be assessed. (Ebner at [8]).
In this case the allegations of the applicant were expressed in general and largely unparticularised form (contrary to the suggestion by Gleeson CJ and Gummow J in Jia Legeng at 531 that an allegation of bias must be “distinctly made and clearly proved”) and without articulation of the logical connection required in Ebner. I have borne in mind however that the applicant is self-represented and I have considered all of the matters raised and also my judgments in past proceedings involving the applicant to determine whether it would be appropriate for me to disqualify myself.
I have also borne in mind that in a case of “real doubt” it would often be “prudent” for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. (See Ebner at [20]). However, for the reasons given below, I am not satisfied either that actual or apparent bias is established or that the circumstances are otherwise such that I should not hear the application for judicial review of the decision of the Migration Review Tribunal.
The applicant’s concerns relate primarily to the content and nature of my decisions in relation to two of his prior applications. He did not take issue with any specific aspects of the conduct of the hearings (except, perhaps insofar as there is an unparticularised complaint that I did not “hear” or “listen to” all of his points).
First, in a decision of 19 December 2003 (SZBJP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 590) I dismissed an application by the applicant for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant him a protection visa. The applicant had legal representation in those proceedings. His application was unsuccessful because he failed to establish jurisdictional error on any of the bases contended for in his application.
An appeal from this decision was dismissed by Beaumont J in SZBJP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 390. The applicant was self-represented before the Federal Court. The grounds of appeal relied on were limited to contentions that the Tribunal had fallen into error. No issue was taken on appeal with my decision or with my conduct of the hearing. Beaumont J found that several of the applicant’s submissions sought review of factual questions not susceptible to judicial review. An application for special leave to appeal to the High Court was unsuccessful ([2005] HCATrans 276).
Subsequently, on 20 July 2006, I dismissed a further application by the applicant which had been filed on 16 June 2006 seeking review of the same decision of the Refugee Review Tribunal, not on my volition as seems to be suggested by the applicant, but rather on one of the bases sought in a notice of motion filed by the first respondent. (See SZBJP v Minister for Immigration & Multicultural Affairs [2006] FMCA 1098). The respondent’s notice of motion sought summary dismissal on several grounds. The application was dismissed by me after hearing submissions from each of the parties (the applicant appearing for himself in this instance) on the basis that the application for judicial review was incompetent as it was filed outside the time limits in s.477 of the Migration Act 1958 (Cth) read in conjunction with transitional provisions in the Migration Legislation Reform Act 2005. While the respondent had also contended that the applicant had no reasonable prospect of successfully prosecuting the proceedings and that the proceedings were an abuse of process (and that doctrines of estoppel and res judicata applied) I found that it was not necessary or appropriate for me to determine whether the proceedings constituted an abuse of process in light of the applicant’s prior judicial proceedings in relation to the same Tribunal decision, given that I had found that the Court had no jurisdiction.
On 2 November 2006 Black CJ dismissed an application for leave to appeal from this decision (see SZBJP v Minister for Immigration & Multicultural Affairs [2006] FCA 1579) finding that I was correct in holding that I had no jurisdiction to hear the application (at [4]) and noting that the applicant recognised and apparently “complained about the fact that [I] had done no more than apply the time limits”. Black CJ pointed out (at [5]) that while the applicant criticised the policy of the legislation that provided for those time limits, he did not advance any argument that I was wrong as a matter of law in applying them and that while he complained about what he saw was the injustice of the situation, he did not seek to show that I “was or even might have been wrong as a matter of law”. As his Honour stated “The applicant complained about the law, but the task of the Federal Magistrate, as, indeed, is the task of this Court, is to apply it”. (at [5])
Black CJ found that as he saw no basis for concluding that I was in error, any appeal would be deemed to fail. Accordingly leave to appeal was refused. In addressing the issue of costs and a complaint by the applicant that he had not had a chance to put what he really wanted to say about his case, his Honour stated at [7] that:
The applicant should note what the Federal Magistrate said and needs to appreciate that his case was in fact considered by the Refugee Review Tribunal, by the Federal Magistrates Court, by the Federal Court and there was an application for special leave to appeal to the High Court.
[8] In each of those instances in the earlier proceedings, the applicant had the opportunity to say what was legally open to him to say. There will be an order that he pays the costs. (emphasis added)
I have read each of my decisions. I do not consider that there is anything in either of those decisions to establish bias or to give rise to the relevant apprehension on the part of a relevantly informed lay observer.
The past applications heard by me sought judicial review of a decision of the Refugee Review Tribunal in relation to a protection visa application. The present application is an application for review of a decision of the Migration Review Tribunal in relation to a bridging visa application. Insofar as the applicant may be raising the sort of argument addressed by Mason J in Re JRL in relation to past decisions on issues of fact and law, this not a situation in which the previous decisions I made related to issues of fact and law that would be in issue in the latest proceedings such as to generate an expectation of a particular outcome.
More generally, the fact that the applicant failed in the previous proceedings before me seeking judicial review of decisions on different matters of a different Tribunal does not establish any basis for a reasonable apprehension of bias or bias on my part such that I should disqualify myself from the present proceedings. In particular no issues of fact or credibility were resolved adversely to the applicant in the prior proceedings. Hence this situation can be distinguished from that considered in Livesey v New South Wales Bar Association. This is not a case in which I expressed views “either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact”. (Livesey at 18)
The fact that the applicant is dissatisfied with my determinations does not in itself establish bias on my part towards him or the relevant apprehension of bias. Insofar as he takes issue with my failure to address the merits of his claim to refugee status or to revisit factual findings of the Tribunal, or to deal with all his claims including those unrelated to the question of whether there was jurisdictional error on the part of the Tribunal, as Beaumont J pointed out on appeal from the 2003 decision such concerns seek impermissible merits review. My failure to engage in merits review or to address the applicant’s concerns about matters other than the question of jurisdictional error in the Tribunal decision or procedures or, in the second case, the application of a statutory time limit, is not such as to establish a basis for disqualification.
The applicant suggested that I had not acted independently, but had “favoured” or had “sympathy” to the government in applying laws which restricted the rights of asylum seekers to judicial review. I take this to be a reference to my application of the time limit in s.477.
The application by a judicial officer of a statutory time limit in circumstances where there was no contention at the time that such a provision was invalid or inapplicable cannot be such as to establish an apprehension of bias, let alone sympathy towards or “favouring” a government which introduced such laws in lieu of judicial independence. It is the case that the subsequent decision of the Full Court of the Federal Court in Minister for Immigration & Citzenship v SZKKC [2007] FCAFC 105 has raised the possibility that a decision on the application of s.477 might now be otherwise depending on whether there was actual notification to the applicant of the Tribunal decision in the manner which is now said to be required. However the fact that the law in relation to interpretation of a statutory provision may have changed after the decision in issue is not a basis for disqualification. As Black CJ pointed out, the task of a Federal Magistrate is to apply the law. The applicant’s concern about the policy behind or the fairness of the law is not a reason for disqualification.
It has not been established that my decision in relation to time limits demonstrated actual bias in the form of prejudgment or that a relevantly informed fair-minded lay observer might reasonably apprehend from such past decision that I might not bring an impartial mind to the resolution of the question in issue in the present proceedings.
I am not satisfied that it is appropriate for me to disqualify myself on the basis of my past judgments. The 2003 case was not a case in which there was any issue as to the applicant’s credibility to be resolved by this Court. He did not give evidence and the matter proceeded before me by way of oral submissions from the legal representatives. The applicant failed on that occasion because of the findings that I made in relation to matters of law, in particular that no jurisdictional error was established on the part of the Tribunal. The 2006 case related only to a statutory time limit. The applicant’s concern about that law and my failure to address the merits of his protection visa application in those judicial review proceedings does not establish a reason for disqualification.
In these circumstances the fact that I determined prior judicial review proceedings initiated by this applicant (which were in relation to a different decision of a different Tribunal and which did not raise issues of fact and law relevant to the present judicial review application) is not such as to satisfy me that there would be an apprehension of bias from the relevant perspective. I recognise that it may have been otherwise had the circumstances (and the nature of the proceedings) been different. Indeed, there will be instances where the fact that prior proceedings involving a party to subsequent proceedings were heard by a particular judicial officer and determined adversely to that person would create a real doubt as to whether it would be appropriate or, at least, prudent for the same judicial officer to hear the subsequent case involving the same litigant. The applicant’s objection to my sitting was not put on that basis in this instance. In any event, I am not persuaded that this is a case in which I should disqualify myself for the reason that I have determined two prior applications for review of a different Tribunal decision adversely to the applicant. In that respect I consider it important that what was in issue was judicial review of a Tribunal decision – not the assessment of the conduct, personal claims or credibility of the applicant as a party to litigation.
While the applicant may prefer that a different judicial officer hear his current, albeit unrelated, judicial review application, I am mindful of my duty to exercise my judicial functions as discussed in Ebner at [19]. I am not satisfied that the applicant’s objection to my sitting is based on a substantial ground for contending that I should disqualify myself from hearing the case. It has not been established that my previous decisions demonstrate a perception from the perspective of the relevantly informed lay observer that I would approach the issues in the current proceedings otherwise than with an impartial and unprejudiced mind, that I would decide the case “on other than its legal and factual merits” as considered in Ebner or that my mind is not open to persuasion.
For these reasons I do not consider it either appropriate or prudent to disqualify myself from sitting in relation to the application filed by the applicant on 9 July 2007. I note that counsel for the first respondent has sought, and I agree, that the issue of the costs of these proceedings should be dealt with at the conclusion of the proceedings for judicial review.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 17 September 2007
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