Zhi G.W. v Minister for Immigration & Ethnic Affairs & Anor [1995] FCA 803

CATCHWORDS COURTS AND JUDGES - No reasonable apprehension of bias in relation to notice of motion involving issues unrelated to previously decided matters. Livesey v New South Wales Bar Association (1983) 151 CLR 288. Australian National Industries Ltd v Spedley Securities Ltd (in liq.) (1992) 26 NSWLR 411. Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48. Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70. Re JRL; Ex parte CJL (1986) 161 CLR 342. GUO WEI ZHI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR AG 51 of 1994 Sackville J. Sydney 15 September, 1995

FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. AG 51 of 1994 GENERAL DIVISION ) BETWEEN: GUO WEI ZHI Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent AND: MS S. McILLHATTON, Member constituting the Refugee Review Tribunal Second Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 15 September, 1995 REASONS FOR JUDGMENT On 4 May 1995, I gave judgment in Guo Wei Rong v Minister for Immigration and Ethnic Affairs ("the first proceedings"). In those proceedings I dismissed applications for relief made by Mr Guo and his wife, Ms Pan. I also gave certain relief in two other matters, which were heard at the same time. In those matters, the applicants were the nieces of Mr Guo and Ms Pan. All four applicants arrived in Australia on 5 December 1993 from China, on the vessel designated as the "Quokka". Appeals are presently pending before the Full Court from the orders made by me in the proceedings involving Mr Guo and Ms Pan.

A separate matter, Guo Wei Zhi v Minister for Immigration has been before the Court on a number of occasions for directions. The applicant in that matter is the brother of Guo Wei Rong, and also arrived in Australia on board the Quokka. Many of the issues raised in these proceedings (the second proceedings) are very similar, if not identical, to those dealt with in the first proceedings. I have been conducting the directions hearings in the second proceedings. The first respondent in the second proceedings has filed a notice of motion, seeking orders that the second proceedings be dismissed by reason of a failure of the applicant to comply with certain procedural directions. In the alternative, the first respondent seeks less drastic orders, including an order that the applicant not be permitted to rely upon evidence filed out of time. The motion is set down to be heard by me on 26 September 1995. At the last directions hearing in the second proceedings, Mr Lawler appeared for the applicant. Mr Lawler was junior counsel for the applicants in the first proceedings. At that directions hearing, Mr Lawler raised for consideration the question of whether I should disqualify myself from the hearing of the notice of motion scheduled for 26 September 1995. When I pointed out that the issues for determination at that hearing were quite different from those dealt with in the first proceedings, Mr Lawler withdrew his foreshadowed opposition to my hearing the notice of motion. Subsequently, however, Mr Lawler indicated that he wished to pursue the matter. Accordingly, I directed that the matter be relisted in advance of the hearing of 26 September 1995 in order to allow the parties to make submissions on the question of whether I should disqualify myself from the hearing scheduled for 26 September 1995. Mr Lawler has submitted that I should disqualify myself. As I followed him, Mr Lawler accepted that: l none of the issues to be determined on the notice of motion relates to or has been dealt with in the first proceedings; l the first proceedings were not conducted in a manner that departed from the requirements of natural justice or procedural fairness; l no issues of credit determined in the first proceedings would be relevant to any of the issues to be decided at the final hearing in the second proceedings. Despite these matters, Mr Lawler contended that I would be disqualified from conducting the final hearing in the second proceedings. On Mr Lawler's submission, I had decided some issues of law and of mixed fact and law, in the first proceedings which were, in substance, identical to the issuesraised by the applicant in the second proceedings. This wouldproduce the result that I could not conduct the final hearing without creating a reasonable apprehension that I might not bring an impartial mind to the resolution of those issues. Since I would be disqualified from the final hearing, Mr Lawler submitted that it followed that I should not deal with any interlocutory matters in the same proceedings. Mr Lawler, who made his submissions carefully, relied upon the well-known statement of principle in Livesey v New South Wales Bar Association (1983) 151 CLR 288, at 293-294: "[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." The significance of the reference to an apprehension that a judge "might" (as opposed to "will") not bring an impartial and unprejudiced mind to the question has been the subject of detailed consideration in other cases: see, for example, Australian National Industries Ltd v Spedley Securities Ltd (In liq.) (1992) 26 NSWLR 411, at 439-440, per Mahoney JA; at 448-449, per Meagher JA; Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48, at 64-65, per Gummow and Heerey JJ. Despite the breadth of this principle, it is by no means clear that I am disqualified from conducting the final hearing in the second proceedings, bearing in mind that it appears that no issue of credit has been determined by me that will be relevant to those proceedings. However, it may well be that my decisions on the questions of law, and of mixed fact and law, in the first proceedings are sufficient to satisfy the stringent test laid down in Livesey and applied in other cases, given that the same or very similar issues arise in the second proceedings. I am content for present purposes to assume that that is the case. On this assumption, it does not seem to me that there could be a reasonable apprehension by the parties or the public that I might not bring an impartial or unprejudiced mind to the resolution of the question involved in the interlocutory hearing. It must be remembered that, as Mr Lawler accepted, none of the issues to be dealt with at that hearing in any way related to the matters determined by me in the first proceedings. As was pointed out in the Gas and Fuel Corporation Case, the law determines what is to be assumed to be the state of knowledge and reasoning of the person whose apprehension of bias is relevant. Gummow and Heerey JJ. (at 65) quoted the observations of Mahoney JA in Spedley (at 440) as follows: "The result of this is that, in substance, this matter is to be judged often, if not ordinarily, according to the view of one who is mistaken. The fact will ordinarily be that the court will be impartial in the relevant sense but the judge will step aside because, though he will be impartial, the appearance of what he does to a person who does not know, for example, the integrity of the court, the capacity of a judge, or the full facts of a case, will raise the reasonable apprehension that he might not be so." However, Gummow and Heerey JJ. then drew attention to the observations of Mason C.J. and Brennan J. in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, at 87: "In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case."