Federal Court of Australia Masi-Haini v Minister for Home Affairs [2023] FCA 430 Appeal from: Masi-Haini v Minsiter for Home Affairs [2022] FCA 1326 File numbers: NSD 1058 of 2022 Judgment of: KENNETT J Date of judgment: 8 May 2023 Catchwords: HIGH COURT AND FEDERAL COURT – Application for disqualification of judge on basis of apprehended bias – where proceedings raise issue on which judge made submissions as senior counsel in previous case – where judge's junior counsel in that case seeks to make same submissions in present case – where passages of written submissions almost identical – whether application should be determined by single judge or Full Court – whether judge should disqualify himself – application dismissed Legislation: Federal Court of Australia Act 1977 (Cth) Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth) Cases cited: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Livesey v New South Wales Bar Association (1983) 151 CLR 288 McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10 Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13 Studholme v Rawson [2020] NSWCA 76; 102 NSWLR 490 SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 SZVBN v Minister for Immigration and Border Protection (No 2) [2017] FCA 123 SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126 Vakauta v Kelly (1988) 13 NSWLR 502 Wark v The State of Western Australia (No 2) [2023] WASCA 67 Wark v The State of Western Australia (No 3) [2023] WASCA 68 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (HCA, M53/2022) Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of last submissions: 4 May 2023 Date of hearing: Determined on the papers Counsel for the Appellant: T Baw with C Honnery Solicitor for the Appellant: Lewis & Bollard Solicitors Counsel for the Respondent: R Francois with A Sapienza Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS NSD 1058 of 2022 BETWEEN: VILI MASI-HAINI Appellant AND: MINISTER FOR HOME AFFAIRS Respondent order made by: KENNETT J DATE OF ORDER: 8 May 2023 THE COURT ORDERS THAT: 1. The appellant's interlocutory application filed on 3 May 2023 be dismissed. 2. There be no order as to the costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KENNETT J 1 This appeal is listed for hearing on Monday 8 May 2023 by a Full Court comprising Markovic and Meagher JJ and me. In the judgment under appeal, a single judge of the Court dismissed an application for judicial review of a decision by the respondent (the Minister) under s 501CA of the Migration Act 1958 (Cth) not to revoke the cancellation of a visa held by the appellant. 2 On 2 May 2023 counsel for the parties, following the procedure advocated in McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10 at [6], saw me in my chambers and informed me that the appellant might file an application seeking my disqualification from hearing the appeal. An application seeking that outcome was filed the following morning. Subsequently, written submissions were provided to my chambers by both parties. Both parties were content for the application to be dealt with on the papers. The ground of the application, which is discussed in more detail later in these reasons, is apprehended bias. 3 The first question that arises is whether the application should be dealt with by me or by the Court as constituted to hear the appeal. 4 The near-universal practice of Australian courts in recent decades, so far as I have been able to ascertain, is for an application of this kind to be determined by the individual judge to whom it relates (a possible counter-example is Livesey v New South Wales Bar Association (1983) 151 CLR 288 (Livesey): see at 292). It was described as the "ordinary, and the correct, practice" in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [74] (Gleeson CJ, McHugh, Gummow and Hayne JJ). This practice has been followed even where the matter from which the judge is asked to disqualify him or herself is listed for hearing by a Full Court. Recent examples in this Court include Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 at [2]–[11] (O'Callaghan J); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166 at [52]–[60] (Bromwich J); CPJ16 v Minister for Home Affairs [2020] FCAFC 212 at [76]–[85] (SC Derrington J) (although the other members of the Court expressed agreement with her Honour's reasons refusing to disqualify herself (at [50])); SZVBN v Minister for Immigration and Border Protection (No 2) [2017] FCA 123 (Robertson J); and SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126 (Wigney J) (together, SZVBN). The same approach was taken in the High Court in Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 (Kartinyeri). Last week, the approach was taken in two decisions of the Western Australian Court of Appeal: Wark v The State of Western Australia (No 2) [2023] WASCA 67 (Buss P) and Wark v The State of Western Australia (No 3) [2023] WASCA 68. 5 However, in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (HCA, M53/2022) (QYFM), an appeal in which judgment is currently reserved in the High Court, the appropriateness of the practice is challenged. A ground of appeal from the judgment of a Full Court of this Court in QYFM is that an issue as to whether one member of the Court was disqualified from sitting by reason of apprehended bias was decided by that judge alone rather than by the Full Court. The submissions of the appellant in that case refer to a recent report by the Australian Law Reform Commission and practices in other common law countries, and submit that it is unsatisfactory for an issue which might impugn the decision of the court to be determined only by one member of that court. 6 Both parties in the present case opposed the appeal being adjourned to await the outcome of QYFM. I agree that that would be undesirable, given that the appellant is in detention and has been for a considerable period of time. 7 I have come to the view that I should follow the usual Australian practice. 8 While there are reasonable arguments that it is preferable for a question of apprehended bias to be decided by somebody other than the judge in relation to whom it is alleged, there are also some potential difficulties involved in a Full Court making the decision as to whether one of its members is disqualified. Among those difficulties is how an opinion of two members of a Full Court, that the third member was disqualified from an appeal, would be enforced if that judge disagreed and wished to sit. It may be that changes to the Federal Court Rules 2011 (Cth) or the Federal Court of Australia Act 1977 (Cth) would be needed in order to facilitate decisions on issues of this kind by a Full Court or allow formal expression to be given to such decisions. 9 Even if a decision by the Full Court were thought to be preferable, it is not clear that the judgment of the Court in the substantive appeal could be successfully impugned as a result of the present application having been decided by me. If I decide the present issue correctly, the Court will be properly constituted for the appeal, and it is hard to see why its judgment would be set aside for any reason relating to its composition. If I decide the issue wrongly and proceed to sit, the Court will not be properly constituted and its judgment might therefore be set aside; but the problem would not be made any worse by the fact that I, rather than the Full Court, had made the decision on disqualification. The issue is properly seen as one of practice. 10 Unless and until the High Court expresses a different view, I think it is appropriate to follow the usual practice. 11 The basis on which it is suggested that I should disqualify myself is as follows. (a) In 2021 I appeared as senior counsel for the appellant Minister in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13 (Viane). Ms Francois, who appears for the Minister in the present case, appeared as my junior. In that proceeding we advanced written and oral submissions on the circumstances in which a factual finding by an administrative decision-maker, which does not have a rational foundation in the material before them, should be regarded as vitiating a state of satisfaction reached by the decision-maker. This issue was not addressed in the reasons of the Justices in Viane, as the Minister succeeded on other grounds. (b) A very similar issue potentially arises in the present appeal, in the light of the findings of the primary judge at Masi-Haini v Minister for Home Affairs [2022] FCA 1326 at [46]–[58]. (c) In addressing this issue in written submissions, Ms Francois has (understandably) borrowed from the written submissions of the Minister in Viane. Two paragraphs of the Minister's written submissions in this appeal are almost identical to paragraphs of the submissions filed in Viane. (d) As articulated in the appellant's submissions, the concern arises from the content of the submissions made in Viane and not from my former professional relationship with Ms Francois (although the latter point was raised as a reasons why the question of apprehended bias should not be decided by me alone). 12 The relevant principles are not in doubt. A judge is precluded from sitting in a case if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the determination of the issues in the case: Ebner at [6]. Two aspects of that test should be emphasised here. First, the hypothetical fair-minded observer is taken to have an understanding of relevant aspects of the legal system: eg Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 87-88 (Mason CJ and Brennan J); Studholme v Rawson [2020] NSWCA 76; 102 NSWLR 490 at [76] (Basten JA (Bell P and Gleeson JA agreeing)). Secondly, an open mind does not mean an empty mind: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [102] (Allsop CJ). An inclination towards a particular view – especially a view on a point of law – is not to be equated with an inability to weigh competing arguments and decide the issue on its merits. 13 In SZVBN, Robertson and Wigney JJ were listed to sit as members of a Full Court. Both had been members of the Full Court in the earlier case of Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 which, the Minister sought to submit in SZVBN, was clearly wrong. Their Honours were invited to consider whether, in those circumstances, they could sit as part of the Court in SZVBN. Each of their Honours decided that he could sit: [2017] FCA 123 (Robertson J); [2017] FCA 126 (Wigney J). Their Honours' reasons explain that the expression of conclusions by a judge on an issue of law in one case has not, without more, been regarded as giving rise to a reasonable apprehension that the judge might not be able properly to consider arguments for a different conclusion in a later case. In Kartinyeri, Callinan J reached the same conclusion in relation to an opinion that he had given while in practice as a barrister. 14 The foundation for an apprehension of bias is weaker where the fear of prejudgment is said to arise from submissions made by a judge in their former role as counsel. The hypothetical fair minded observer should, in my view, be taken to understand the role of counsel in a contested proceeding and, in particular, that the task of counsel is to put the best arguments that can properly be made in support of their client's interests: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215, 230 (Merkel J). Submissions are not statements of counsel's opinion, although their contents may coincide with the views that counsel personally holds about the law. 15 Even accepting that there may be a natural human tendency to find merit in an argument that one has played a role in formulating, that leads at most to predisposition rather than prejudgment. The hypothetical observer is also taken to know that a judge is a person "whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial" (Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12] (Gleeson CJ) quoting Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA)). To that assumed knowledge may safely be added an understanding that the judge's training, tradition and oath or affirmation require the capacity to re-assess positions previously taken in the light of developing case law and further argument (see also Livesey at 289 (Mason, Murphy, Brennan, Deane and Dawson JJ)). Presented with a legal argument in identical terms to one that they advanced in a former role as counsel, a judge is likely to appreciate both the strengths and the weaknesses of that argument. Without more, there is no reason for a fair-minded observer to fear that the judge might not approach with an open mind the task of deciding whether the argument is correct. 16 For these reasons the application must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett. Associate: Dated: