FEDERAL COURT OF AUSTRALIA SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126 Appeal from: SZVBN & Ors v Minister for Immigration & Anor [2015] FCCA 2977 File number(s): NSD 527 of 2016 Judge(s): WIGNEY J Date of judgment: 20 February 2017 Catchwords: PRACTICE AND PROCEDURE – application to disqualify – apprehended bias – where Full Court of the Federal Court of Australia asked to determine whether Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 is "plainly wrong" – where Judge a member of both Full Court benches Legislation: Migration Act 1958 (Cth), ss 48, 48A Cases cited: Betfair Pty Ltd v Racing New South Wales (No 14) [2010] FCA 696 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56 Johnson v Johnson (2000) 201 CLR 488 Kirby v Centro Properties Ltd and Others (No 2) (2011) 202 FCR 439 Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 R v Burrell [2007] NSWCCA 79 Re JRL; Ex parte CJL (1986) 161 CLR 342 Sengupta v Holmes [2002] EWCA Civ 1104 Date of hearing: Determined on the papers Date of last submissions: 15 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Respondent: Mr G Kennett SC with Mr B D Kaplan Solicitor for the Respondents: Sparke Helmore ORDERS NSD 527 of 2016 BETWEEN: SZVBN First Appellant SZVBO Second Appellant SZVBP Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: WIGNEY J DATE OF ORDER: 20 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The first respondent's interlocutory application filed 15 February 2017 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WIGNEY J: 1 The appellants have appealed from a judgment of the Federal Circuit Court of Australia which dismissed their judicial review application. That application, which named the Minister for Immigration and Border Protection as respondent, involved a challenge to a determination by an officer of the Department of Immigration and Border Protection to reject the appellants' applications for Protection visas on the basis that the appellants were precluded from making those visa applications by s 48A of the Migration Act 1958 (Cth). The appeal is listed for hearing on 10 March 2017 by a Full Court constituted by five judges, including me. 2 By interlocutory application filed 15 February 2017, the Minister applies for an order that I recuse myself and that the recusal application be "heard and determined on the papers". The "papers" comprise an affidavit sworn by the Minister's solicitor which sets out some of the procedural history of the appeal, together with some brief written submissions. In correspondence addressed to the Court, the appellants (through their counsel) invited the Court to "consider listing the Minister's application in open Court" as it was a "serious allegation" and one of "general importance to appellate litigation and, in the Appellants' submission, requires sensitivity and transparency" and was "not, contrary to the Minister's submissions, covered by authority". Beyond this correspondence, the appellants did not explicitly state their position in relation to the application. Despite the appellants' invitation to have the matter heard in open Court, and for the reasons later outlined, I have determined that the application can and should be heard on the papers. 3 The basis of the Minister's application for me to recuse myself may be shortly stated. 4 Section 48A of the Migration Act provides that a non-citizen who, while in the migration zone, 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. A departmental officer rejected the applicants' Protection visa applications because they had previously been included in their mother's Protection visa application which had been refused. 5 In the court below, the appellants' challenge to the determination by the departmental officer hinged on the answer to the following question, which the primary judge was asked to determine as a separate and preliminary question: Does the requirement of knowledge of a visa application which the Full Court of the Federal Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 concluded was required by s 48(1)(b)(i) of the Migration Act 1958 (Cth) (Migration Act), in the form in which it stood prior to the commencement of the Migration Legislation Amendment Act (No 1) 2014 (Cth) (Amendment Act), applies equally to s.48A(1) of the Migration Act, in the form in which it stood prior to the commencement of the Amendment Act, in circumstances where a child who makes an application for a protection visa had previously been included, without his or her knowledge, in an application for a protection visa as a member of the family unit of his or her parent? (Emphasis in original) 6 The context in which this separate and preliminary question was posed appears to be that the appellants wished to contend that they were not prevented by s 48A from lodging their Protection visa applications because they did not know that they had been included in their mother's earlier Protection visa application. They wished to argue that in those circumstances they had not made an earlier application for a Protection visa. In that regard, they wished to rely on the decision of the Full Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 concerning the proper construction of s 48(1)(b)(i) of the Migration Act. 7 Section 48(1)(b)(i) of the Migration Act relevantly provided at the time that a non-citizen in the migration zone who does not hold a substantive visa and who, after last entering Australia, was refused a visa, may only apply for certain prescribed visas. In Kim, the Full Court construed s 48(1)(b)(i) as effectively only operating if the non-citizen had knowledge of the prior visa application. Only then could it be found that the non-citizen had relevantly applied for the prior visa. 8 In the present appeal, the primary judge answered the preliminary question "No" and dismissed the appellants' application. The primary judge distinguished Kim and held that the operation of s 48 of the Migration Act did not similarly qualify the operation of s 48A as it stood at the relevant time. It is unnecessary, for present purposes, to detail the primary judge's reasons for arriving at that conclusion. 9 On appeal, the appellants will contend that the Full Court's reasoning in Kim concerning s 48 is applicable to s 48A and that the primary judge erred in distinguishing Kim. The Minister, on the other hand, will contend that the primary judge was correct in holding that the reasoning in Kim does not apply in the context of s 48A. The Minister has also filed a notice of contention which indicates that the judgment of the primary judge should be affirmed on the basis that the judgment in Kim was plainly wrong. The Full Court in Kim was constituted by Yates and Robertson JJ, and me. The judgment in Kim was a joint judgment. 10 The Minister contends that I should recuse myself on the basis of apprehended bias because the Minister's notice of contention challenges the correctness of the joint judgment in Kim. He submits 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". The Minister relies, in support of that submission, on the reasoning of Perram J in Betfair Pty Ltd v Racing New South Wales (No 14) [2010] FCA 696. The Minister submits that the current constitution of the Court in this appeal "appears to be inconsistent with the published reasons in Betfair" and suggests that it would be "useful for future litigants if short reasons could be given explaining whether that reasoning is correct". 11 The relevant principles in relation to apprehended bias are well settled. The governing principle is 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 that the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6] (per Gleeson CJ, McHugh, Gummow and Hayne JJ). The application of this principle requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner at 345 [8]. 12 The reasonableness of any suggested apprehended bias on the part of a judge is to be considered in the context of ordinary judicial practices and having regard to the fact that the person observed is a "professional judge whose training, tradition and oath or affirmation require [the Judge] to discard the irrelevant, the immaterial and the prejudicial": Johnson v Johnson (2000) 201 CLR 488 at 493 [12] (per Gleeson CJ, Gaudon, McHugh, Gummow and Hayne JJ) quoting Vakauta v Kelly (1988) 13 NSWLR 502 at 527 G (per McHugh JA). The conclusion of apprehended bias is not lightly to be drawn nor should it be too readily acceded to: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (per Mason J); Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 at 211-212 [121] (per Besanko J); Betfair (No 14) at [21]. 13 In Betfair (No 14), Perram J acceded to an application that he recuse himself on the ground of apprehended bias. His Honour acceded to that application in part because, in the matter then before him, he would be required to decide whether an earlier decision made by him in a separate, though related, matter was plainly wrong. His Honour concluded, at [24], that it seemed to him that "a fair minded observer could well be sceptical of my ability to assess the quality of my own reasoning" and that the observer therefore "might well regard me as being possibly unable to bring a fair mind to bear on these questions". 14 In this matter, I do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the appeal, including the question of the correctness or otherwise of the reasoning in Kim. That is not to say that I consider Perram J's reasons for recusing himself in Betfair (No 14) were in any sense unsound. His Honour applied the relevant principles concerning apprehended bias to the particular facts and circumstances of the case before him in an entirely routine and uncontroversial way. That is not to say that the facts and circumstances of Betfair (No 14) were routine and uncontroversial. Indeed, it is fair to say that the particular facts and circumstances in Betfair (No 14) were somewhat unique. The questions that had been decided by his Honour were by no means straightforward questions of law or statutory construction. One argument that had effectively been foreshadowed before Perram J was that his Honour's reasoning in the earlier decision was so deficient that any judge would see the error. 15 The facts and circumstances of this case are quite different. I am required to apply the relevant principles concerning apprehended bias to the particular facts and circumstances of this matter, not on the basis of what a different judge did in a different case involving different facts and circumstances. It is to be noted, in that context, that had Perram J not disqualified himself, his Honour would have been asked to consider the "quality" of his own reasoning as a single judge. In contrast, Kim was a joint judgment and I may be called upon to consider its correctness or otherwise as part of a five member Full Court. 16 Contrary to the implicit suggestion in the Minister's submissions, Betfair (No 14) does not stand as authority for the proposition that a judge must always disqualify himself or herself because in an earlier case he or she ruled on a point of law that is likely to arise in the subsequent case. There is no such inflexible rule. Indeed, there is authority for the contrary proposition. 17 In Re JRL, Mason J said (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 the 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 here is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established"…[.] (Emphasis added) 18 In Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302, Hayne J, sitting as a single judge, said (at 307 [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…[.] (Emphasis added) 19 In R v Burrell [2007] NSWCCA 79; (2007) 175 A Crim R 21 at 25 [11], McClellan CJ at CL (with whom Sully and James JJ agreed) stated that: The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge. 20 In Kirby v Centro Properties Ltd and Others (No 2) (2011) 202 FCR 439 at 443 [22], Middleton J referred with approval to the decision of Laws LJ (with whom Jonathan Parker LJ agreed at [41]) in Sengupta v Holmes [2002] EWCA Civ 1104 at [35]-[37], in which his Lordship stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion. 21 These authorities support the proposition that a fair-minded lay observer may be taken to be aware of the fact that judges are sometimes asked to reconsider the reasoning in earlier decisions made by them. If that occurs, it is by no means unheard of that a judge will be persuaded that an earlier decision made by them was wrong, even plainly wrong, particularly in circumstances where new and more forceful or persuasive arguments are advanced. That is part and parcel of the judge's training, tradition and oath of office, which require the judge to approach such arguments rationally, objectively and dispassionately, even when the arguments are directed at the quality of the judge's earlier reasoning. It follows that a fair-minded observer, acting reasonably, would not necessarily be likely to apprehend that a judge might not bring an impartial mind to a question of law simply because the judge has expressed an opinion on that question of law in an earlier case. 22 In this matter, the question of the correctness of the reasoning in Kim arises in a different factual and legal context. More significantly, the Minister has foreshadowed, in written submissions dated 9 August 2016, arguments concerning the proper construction of s 48 of the Migration Act which, for whatever reason, may not have been raised, or may not have been raised with the same force or vigour, before the Full Court in Kim. Those arguments may be put even more persuasively in oral argument. 23 In such circumstances, there is no sound basis to conclude that a fair-minded observer might reasonably apprehend that I would not be able to bring an impartial mind to the question whether the reasoning in the joint judgment in Kim was plainly wrong. Rather, a fair-minded observer would reasonably apprehend that the legal question that arose in Kim will be fairly and impartially considered afresh in the different factual and legal context of the appeal and in light of the submissions put by the parties. In all the circumstances, a fair-minded observer would not reasonably apprehend merely from my participation in the joint judgment in Kim, that I harbour an irrevocable commitment to the question of construction of s 48 of the Migration Act arrived at in that case, such that I would not be able to fairly, objectively and impartially consider the arguments and submissions on the appeal. 24 In circumstances where I have decided not to accede to the Minister's application for me to recuse myself, the application can conveniently be heard and determined on the papers without hearing further from the appellants. The publication of these reasons will address the matters referred to by the appellants in their correspondence with the Court. 25 The Minister's application that I recuse myself is dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 20 February 2017