FEDERAL COURT OF AUSTRALIA SZVBN v Minister for Immigration and Border Protection (No 2) [2017] FCA 123 Appeal from: SZVBN & Ors v Minister for Immigration [2015] FCCA 2977 File number: NSD 527 of 2016 Judges: ROBERTSON J Date of judgment: 17 February 2017 Catchwords: PRACTICE AND PROCEDURE – procedural fairness – whether apprehended bias – where party seeks to challenge the correctness of an earlier decision of a Full Court on a question of statutory construction – whether judge who was a member of that earlier Full Court should recuse himself Legislation: Migration Act 1958 (Cth) ss 48, 48A Cases cited: Betfair Pty Ltd v Racing New South Wales (No 14) [2010] FCA 696 Ceccattini v ICM 2000 Pty Ltd [1999] NSWSC 1196 Ewert v Lonie [1972] VR 308 Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; 166 ALR 302 Kartinyeri v Commonwealth [1998] HCA 52; 156 ALR 300 Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30; 107 ALR 581 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Sportsbet Pty Ltd v New South Wales [2010] FCA 604; 186 FCR 226 Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) Date of hearing: Heard on the papers Date of last submissions: 15 February 2017 (Respondent) The Appellants did not provide submissions Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Respondent: Mr G Kennett SC with Mr BD Kaplan Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS NSD 527 of 2016 BETWEEN: SZVBN First Appellant SZVBO Second Appellant SZVBP Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGES: ROBERTSON J DATE OF ORDER: 17 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The application that Justice Robertson disqualify himself from the hearing of the appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROBERTSON J: 1 By interlocutory application dated 15 February 2017, the respondent Minister asked that I recuse myself from hearing this appeal, fixed for hearing on 10 March 2017. 2 The respondent Minister also sought that the interlocutory application be determined on the papers. I proceed to do so. 3 The basis of the application is that in the appeal the Minister has filed a notice of contention challenging the correctness of an earlier decision of a Full Court of which I was a member: Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523. 4 Because the correctness of that earlier decision is to be challenged, the Full Court hearing the appeal is to be constituted by five judges. 5 It is to be noted that this application does not concern a previous decision on the same facts or upon the credibility of a relevant witness. Instead, it concerns a question of statutory construction. 6 Kim concerned the construction and application of s 48 of the Migration Act 1958 (Cth). The present appeal concerns s 48A. 7 The relevant language under consideration in Kim was a "non-citizen… who… was refused a visa… for which the non-citizen had applied… may… not [apply] for a visa of any other class." The language under consideration in the present appeal is "a non-citizen who… has made… an application for a protection visa, where the grant of the visa has been refused… may not make a further application for a protection visa while in the migration zone." 8 As stated in the written submissions of four paragraphs filed in support of the interlocutory application, "The interlocutory application has been filed in order to ask Robertson J to consider whether his Honour should recuse himself from hearing this appeal for the reasons given by Perram J in Betfair Pty Ltd v Racing New South Wales (No 14) [2010] FCA 696 at [18(b)], [19], [24] and [25]. It is submitted: "(consistently with the reasoning in Betfair, above) that a fair-minded observer may doubt whether a judge can bring an open mind to the question whether an earlier decision in which he or she participated is "plainly wrong", since that question goes to the quality of the reasoning in that earlier decision." 9 It is also submitted that since the current constitution of the Court in the present appeal "appears to be inconsistent with the published reasons in Betfair", it would be useful for future litigants if short reasons could be given explaining whether that reasoning is correct. 10 I take as my starting point what was said by Mason J in Re JRL; Ex parte CJL [1986] HCA 39, 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 is 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 is 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 is a reasonable apprehension of bias by reason of prejudgment and this must be ''firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (Footnotes omitted.) 11 Next I consider the authorities referred to at [9.250] in Aronson, Groves and Weeks Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) where it is said: "A judge's ruling in an earlier case on the same point of law as arises in the instant case is no ground for disqualification." The authorities referred to include Kartinyeri v Commonwealth [1998] HCA 52; 156 ALR 300 and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; 166 ALR 302. 12 In Kartinyeri, Callinan J in refusing, at that point, to disqualify himself, said: [24] I do not think that the expression of an opinion as to a legal matter, whether as a practising lawyer or as a judge on a prior occasion, will ordinarily of itself give rise to a reasonable apprehension of bias according to the relevant test. Mason J in the passage I have already quoted points out that the making of a previous decision by a judge on issues of fact and law, although perhaps generating an expectation of a particular outcome, does not mean that the judge will not be impartial and unprejudiced in the relevant sense. (Footnote referring to Re JRL; Ex parte CJL omitted.) 13 In Helljay Investments, Hayne J said, after also quoting the judgment of Mason J in Re JRL; Ex parte CJL: [12] The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding. As Lush J said in Ewert v Lonie: [[1972] VR 308 at 311–12] Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law's reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth. (Footnotes omitted.) 14 In Re Finance Sector Union of Australia and another; Ex parte Illaton Pty Ltd [1992] HCA 30; 107 ALR 581 at 583, Deane, Toohey and Gaudron and JJ said: The basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. 15 If the prejudgment is said to be of law, it is not enough that a judge has determined a legal issue in the past in a particular way: Ceccattini v ICM 2000 Pty Ltd [1999] NSWSC 1196 at [17] per Santow J. 16 It may therefore be important to consider the terms in which the conclusion in Kim was expressed. Those terms were as follows: 36 The purpose of s 48 is to prevent more than one application for a visa in the specified circumstances. But does this mean an application validly made or is the section directed more to the person making the application? 37 In our opinion the better construction is that it is directed to the person and to an application of which the non-citizen had knowledge, rather than an application which merely validly affected the non-citizen or from which the non-citizen would have benefited. … 41 The issue is not, in our opinion, whether the 2008 visa application was valid, as to which compare Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307, but whether the respondent made the application. We do not accept the submission on behalf of the Minister to the effect that if an application is valid then, within the meaning of s 48, the visa application is made by any person named in the application as a person on whose behalf it was made. … 50 In our opinion, the legislative history and extrinsic material do not clearly show, one way or the other, what the legislature intended by the words of the present statutory provisions. We observe, however, that there is some emphasis on non-citizens making repeat applications which may tend to suggest that the mischief was narrower than the mere validity of such earlier applications. (Emphasis in original.) 17 These reasons show that, as with many other questions of statutory construction, the question in Kim was contestable and recognised to be so. The reasons do not show or suggest that I have, or might have, closed my mind to argument on the point. 18 In my opinion the circumstances in Betfair were quite different. Betfair was not concerned with a question of statutory construction as arises in the present appeal but with s 92 of the Constitution or statutory derivatives thereof. Also, in reaching his conclusion in Sportsbet Pty Ltd v New South Wales [2010] FCA 604; 186 FCR 226, which conclusions were the point of the interlocutory application in Betfair, Perram J was highly critical of Racing New South Wales, in particular, its chief executive Mr V'landys. In my view, [18], including [18(b)], of Perram J's reasons in Betfair should be read in that light and as aspects of a single conclusion to recuse himself from hearing Betfair's interlocutory application for leave to reopen its case. 19 In an application such as the present, ex parte, I would not accede to the invitation to explain whether the reasoning in Betfair is correct. It is sufficient to repeat that I would not take [18(b)] of that judgment as a freestanding proposition. 20 For these reasons, the interlocutory application that I recuse myself from hearing this appeal is dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 17 February 2017