Did judge's appearance as counsel against the appellant in the conviction appeal give rise to a reasonable apprehension of biasness on the part of a fair-minded lay observer?

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (17 May 2023)

Intro:

This is an appeal from a decision of the Full Court of the Federal Court of Australia.

Facts:-

The matter before the Full Court was an appeal by the present appellant, who is a citizen of Burkina Faso. The respondents to the appeal were the present respondents, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Minister") and the Administrative Appeals Tribunal ("the AAT"). The appeal was from a decision of a single judge of the Federal Court dismissing an application by the appellant for judicial review of a decision of the AAT. The decision of the AAT had affirmed a decision of a delegate of the Minister not to revoke the cancellation of the appellant's visa.

Under the Migration Act 1958 (Cth) ("the Act"), the Minister is obliged to cancel a person's visa if the Minister is satisfied that the person does not pass the "character test" and if the person is serving a full-time sentence of imprisonment. The Act provides that a person does not pass the "character test" if the person has "a substantial criminal record", which exists if the person has been sentenced to a term of imprisonment of 12 months or more. Upon notice to the person and upon representations being made by the person, the Minister has a discretion to revoke the cancellation decision if, relevantly, satisfied that there is "another reason" (apart from the person passing the character test) why that decision should be revoked. A decision of a delegate of the Minister made in the exercise of that discretion is reviewable on its merits by the AAT.

Following a trial on indictment in the County Court of Victoria in 2013, the appellant was convicted of a drug importation offence under the Criminal Code (Cth). He was sentenced to a term of imprisonment of ten years with a non-parole period of seven years. He appealed against his conviction to the Victorian Court of Appeal, which in 2014 dismissed the appeal.

In 2017, while the appellant was serving the sentence of imprisonment, a delegate of the Minister made the decision to cancel his visa on the basis that he did not pass the "character test" by reason of the sentence of imprisonment. In 2019, another delegate of the Minister decided not to revoke that cancellation decision. The decision not to revoke the cancellation of the appellant's visa was affirmed by the AAT in 2020. The appellant applied for judicial review of that decision of the AAT and was unsuccessful before the primary judge, leading to the appeal to the Full Court.

The appellant was unrepresented before the primary judge and at the time of filing the original notice of appeal from the decision of the primary judge to the Full Court. The appellant subsequently obtained legal representation, resulting in a written application to the Full Court for leave to amend the notice of appeal to raise grounds which had not been advanced before the primary judge. The proposed grounds were to the effect that the decision of the AAT was legally unreasonable and that certain findings of the AAT were not supported by probative evidence. The application for leave to amend was listed for hearing at the time scheduled for hearing of the appeal.

The appeal was scheduled to be heard on the morning of 17 August 2021 before a Full Court constituted by McKerracher, Griffiths and Bromwich JJ. It is a matter of public record that, from 2012 until his appointment to the Federal Court in 2016, Bromwich J held the office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 (Cth).

Minutes before the commencement of the hearing on that day, the associate to Bromwich J sent an email to the legal representatives of the parties. The email stated that his Honour had asked the associate to advise the parties that he had appeared for "the Crown" in the appellant's unsuccessful conviction appeal in the Victorian Court of Appeal in 2014. The fact that his Honour had appeared as senior counsel for the respondent in that appeal was apparent from the record of the decision of the Victorian Court of Appeal, which was included in the appeal book for the Full Court proceedings. The email said that his Honour did not consider that circumstance to give rise to an apprehension of bias as the appeal "related to a pure legal question" but nonetheless wished to draw it to the attention of the parties "in order that any application for his Honour to recuse himself" could be made.

At the commencement of the hearing of the appeal before the Full Court, counsel for the appellant announced that he had instructions to apply for Bromwich J "to recuse himself". Counsel for the appellant proceeded to make that application orally, relying solely on the circumstances disclosed in the email. At the conclusion of the oral submissions of counsel for the appellant there was a short adjournment, following which the Full Court reconvened.

Upon the Full Court reconvening, McKerracher J invited Bromwich J to "deal with the application". Bromwich J explained that he declined to recuse himself from sitting on the appeal for reasons he proceeded to elaborate. McKerracher J then invited counsel for the appellant to continue and the hearing resumed. At the conclusion of the hearing, the Full Court reserved its decision.

The decision of the Full Court was delivered on 15 September 2021. By that decision, the Full Court granted the appellant leave to rely on the ground that the decision of the AAT was legally unreasonable, refused the appellant leave to rely on the proposed ground that findings of the AAT were not supported by probative evidence, and dismissed the appeal.

Joint reasons for judgment then published by McKerracher and Griffiths JJ comprehensively addressed the merits of the application for leave to amend the notice of appeal and the appeal. Those reasons said nothing about the application which had been made orally at the hearing.

In separate reasons for judgment, Bromwich J agreed with McKerracher and Griffiths JJ as to the merits and went on to recapitulate the reasons he had given during the hearing for considering that the circumstances outlined in the email from his associate did not give rise to an apprehension of bias. Those reasons, in essence, were that: as Director of Public Prosecutions his practice was to appear only in appeals which raised issues of principle; the appellant's appeal against conviction to the Victorian Court of Appeal was an appeal of that character, turning wholly on a legal question as to the admissibility of evidence; by virtue of his appearance in that appeal, he had acquired no knowledge of the criminal history of the appellant beyond that which was apparent to all members of the Full Court from the record of the decision of the Victorian Court of Appeal contained in the appeal book for the Full Court proceedings; the fact of the conviction was not in issue in the appeal before the Full Court, it being common ground that the appellant failed the "character test"; and the contents of the decision of the Victorian Court of Appeal did not feature in the appeal before the Full Court in any way, the record of that decision having been included in the appeal book only because it had been part of the material which had been before the AAT.

His Honour also made clear what was in any event to be inferred from the timing of his associate's email: that he had only noticed that he had appeared in the conviction appeal during the course of his final preparation on the morning of the hearing before the Full Court on 17 August 2021. His Honour acted prudently in accordance with standard judicial practice by promptly notifying the parties of circumstances properly recognised by him to have the potential to be seen to give rise to an apprehension of bias.

Issue:-

Whether challenged judge's appearance as senior counsel for the Crown in the appellant's appeal against his convicton for drug importation offense was sufficient to have given rise to reasonable apprehension of bias on the part of challenged judge?

Consideration:-

The Full Court should have decided the objection

The application made to the Full Court by counsel for the appellant at the commencement of the hearing, although framed as an application that Bromwich J "recuse himself", was in substance an objection to the Full Court as then constituted hearing and determining the appeal. Was the application appropriately left by McKerracher and Griffiths JJ to be considered and determined by Bromwich J alone? Or should it have been considered and determined by the Full Court constituted by all three of them?
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The question arising in the circumstances of the present case falls to be resolved at the level of principle within the framework established in Ebner v Official Trustee in Bankruptcy. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power. The other is that "[b]ias, whether actual or apprehended, connotes the absence of impartiality". Leaving to one side exceptional circumstances of waiver or necessity, an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power.

Once the jurisdictional significance of bias is appreciated, it becomes apparent that responsibility for ensuring an absence of bias – whether actual or apprehended – lies with a court as an institution and not merely with a member of that court whose impartiality might be called into question. The duty, indeed the "first duty", of any court is to be satisfied of its own jurisdiction. The upshot of that duty, as elaborated by Gibbs J in The Queen v Federal Court of Australia; Ex parte WA National Football League, is that:-

"When the question is raised before a court of limited jurisdiction whether a condition of its jurisdiction has been satisfied, that court is not obliged immediately to refrain from proceeding further. It can and should decide whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive."

Thus, an objection to a multi-member court as constituted hearing and determining a matter based on an allegation of bias on the part of one or more of its members (including an objection brought by way of an application for recusal or disqualification) raises a question of jurisdictional fact which that court can and must determine for itself in order to be satisfied of its own jurisdiction. The determination of that question of jurisdictional fact is not antecedent to the performance of the curial function, but part of that function. The determination ought to be reflected in a curial order which embodies the court's formal resolution of the objection, subject to applicable procedures for appeal or review for jurisdictional error.

In the case of the Full Court of the Federal Court, precisely who constitutes "the court" for the purposes of hearing and determining an appeal is spelt out in the Federal Court of Australia Act 1976 (Cth). Subject to presently immaterial exceptions, the appellate jurisdiction of the Federal Court is required to be exercised by a Full Court consisting of three or more judges sitting together. The making of arrangements about which judges are to constitute the Full Court in a particular matter or class of matters lies within the responsibility of the Chief Justice. The process by which the Chief Justice makes arrangements can be expected to be tailored to minimise the risk of any issue of bias arising on the hearing of a matter, including by allowing a legitimate concern about bias on the part of a judge to be raised and addressed administratively as an aspect of that process. But once a Full Court consisting of three or more judges is constituted and is seized of the hearing of an appeal, responsibility for the discharge of the judicial power involved in hearing and determining the appeal devolves to those three or more judges acting institutionally as the Full Court. The institutional responsibility of the Full Court as so constituted includes the consideration and determination of an objection to its jurisdiction. The Full Court as so constituted has a duty to hear and determine the appeal unless the court as so constituted determines that the objection to jurisdiction is well-founded.

The view that an allegation of bias on the part of a member of an appellate or collegiate court can and should be considered and determined by the court as distinct from the impugned member alone was cogently developed by Sir Anthony Mason, writing soon after Kartinyeri. Sir Anthony concluded that the court has an institutional responsibility to ensure that it is constituted "in accordance with the provisions of the law governing the judicial process, the exercise of judicial power and natural justice". He pointed out that that institutional responsibility of the court as constituted was entirely congruent with what then was, and remains, the common practice in Australian courts according to which judges at first instance hear and determine allegations of bias raised against themselves. The rationale for that practice he explained to be that "[a]t first instance, the judge who is the target of the objection determines the objection because [that judge] constitutes the court".

To require an allegation of bias on the part of a member of a multi-member court to be considered and determined by the court as constituted should not be thought to place an undue strain on judicial collegiality. In the context of explaining the appropriateness of appellate review of non-recusal decisions, it was emphasised in Livesey that the determination of questions of apprehended bias can involve evaluations of degree on which reasonable minds might differ and that a conclusion of apprehended bias on the part of an individual judge implies no criticism of that judge. As for sensitivities between judges at different levels of the judicial hierarchy, so for sensitivities between judges within a multi-member court.

The application that Bromwich J "recuse himself" ought therefore to have been considered and determined by the Full Court.

Apprehended bias should have been found

The basis on which apprehended bias should have been found remains to be explained.

The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "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". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".

Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

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In the present case, close adherence to the logic of the Ebner analysis has greater utility.

Although the appellant placed some emphasis on the fact of Bromwich J having held the statutory office of Director of Public Prosecutions at the time of the appellant's conviction appeal, and by inference at the time of his indictment, trial and conviction, the appellant failed to articulate how that factor alone might logically be said to lead to an apprehension that his Honour might not resolve the questions in the appeal to the Full Court on their legal and factual merits. None is apparent.

The appellant is on firmer ground in relying on the fact that Bromwich J had appeared as counsel against him in his conviction appeal. It will be recalled that becoming aware of that fact had prompted Bromwich J correctly to cause the parties to be notified of the potential for an apprehension of bias to have arisen.

In articulating the logical connection between that factor and an apprehension that Bromwich J might not bring an impartial mind to the resolution of the legal questions before the Full Court on their merits, the appellant relied on the observation of Gageler J in Isbester that "a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person".

His Honour's appearance as counsel against the appellant in his earlier conviction appeal was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that his Honour had formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party. The circumstance that the conviction led to the cancellation of the appellant's visa so as to be causally related to the subject-matter of the appeal concerning the non-revocation of the cancellation decision reinforced the reasonableness of that apprehension in the circumstances of the case. The facts that his Honour had been concerned as counsel only to argue a question of law and had acquired no knowledge of the criminal history of the appellant not apparent from the record of the decision of the Victorian Court of Appeal were not to the point. Neither that nor any other of the considerations referred to by his Honour was sufficient to allay the apprehension of bias which reasonably arose.

The effect of apprehended bias

The Solicitor-General of the Commonwealth, who appeared for the Minister, conceded that it followed from a conclusion of apprehended bias on the part of Bromwich J that the Full Court was deprived of jurisdiction to hear and determine the appeal even though the decision was in fact unanimous. Despite being prepared to concede that bias on the part of one out of three members of a multi-member court was sufficient to deprive the court of jurisdiction, the Solicitor-General sought to reserve to a future case whether bias on the part of one out of, say, five or seven members of a multi-member court would have that effect. The attempted reservation indicates that something needs to be said about the basis on which the concession is correct.

Once it is accepted that absence of bias is inherent in the exercise of judicial power and that the jurisdiction of a multi-member court is to be exercised by all of the judges who constitute the court for the hearing and determination of a matter, it becomes apparent that bias on the part of any one of those judges deprives the court as so constituted of jurisdiction to proceed with the hearing and determination of that matter. Where bias on the part of an individual judge is established, that is the end of the jurisdictional inquiry. No numerical exercise is involved. It is not a question of counting apples in a barrel[84]. Nor is it to the point to inquire into whether the outcome of the exercise of jurisdiction by the court as so constituted would or could have been different if the judge was not biased or if the biased judge did not participate.

That jurisdictional consequence of bias on the part of any of its members has an important practical dimension for a multi-member court. Each member of the court has an individual duty to give effect to his or her own true view of the facts and applicable law. In the discharge of that duty, however, members of the court can properly be expected to confer together in private in order to obtain the benefit of each other's views and to agree where they can. For the public to be able to have confidence in the outcome of such a closed deliberative process, the public must be confident that each participant in the process is free from bias. The process and the outcome would be tainted were a biased judge "in the room".

Conclusion:-

The appeal should be allowed. The decision of the Full Court should be set aside. The matter should be remitted to the Federal Court to be heard and determined by a differently constituted Full Court. The Minister should pay the appellant's costs of the appeal and of the hearing to date of the appeal to the Full Court.