The High Court handed down an important decision on reasonable apprehension of bias in the matter of QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15. Apprehended apprehension of bias is said to arise where “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” Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
Facts
QFM was a citizen of Burkinsa Faso. He was sentenced to a term of 10 years imprisonment for a drug importation offence under the Criminal Code (Cth). He therefore had a ‘substantial criminal record’ and his visa was cancelled by the Minister under the Migration Act 1958 (Cth). QFM unsuccessfully applied for a Judicial review, which ultimately led to an appeal to the Full Court.
Bromwich J comprised one of the three (3) Justices to hear the appeal. He had been the former DPP who had appeared at QFM’s unsuccessful appeal against conviction. Submissions were made for Bromwich J to recluse himself and after an adjournment, His Honour provided reasons why he would not do so [13].
Two issues arose in the appeal.
- Whether those circumstances were sufficient to have given rise to apprehended bias on the part of the individual judge. [2]
- Whether the objection ought to have been considered and determined by the Full Court or by Bromwich J alone [3].
Kiefel CJ and Gageller J
Reasonable Apprehension of bias
Their Honours held at [55]
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
Multi‑Member Bench
Kiefel CJ and Gageller J at [35]
The application that Bromwich J “recuse himself” ought therefore to have been considered and determined by the Full Court.
Gordon J
Reasonable Apprehension of bias
Her Honour in allowing the appeal held at [85]
The performance by Bromwich J of the two incompatible roles in the exercise of public power gave rise to the appearance of unfairness, impartiality and a lack of independence being present in the exercise of power to dismiss the migration appeal.
Multi‑Member Bench
Gordon J at resolved the multi bench issue at [66]
However, if an objection is raised or there are matters giving rise to a real potential for apprehended bias, and the judge in question decides not to recuse themselves (as occurred here), the Full Court as constituted must be satisfied it has jurisdiction before proceeding to hear the matter. In most, if not all, cases, the judge in question should have the opportunity initially to decide to recuse themselves, without that matter needing to be decided by the Full Court. If the judge decides not to recuse themselves and the objection is maintained, or the other judges consider that there are matters giving rise to a real potential for apprehended bias, a procedure that might be followed is set out below.
Edelman J
Reasonable Apprehension of bias
… that a fair-minded lay observer might not bring an impartial mind to the adjudication of the issues on the appeal of the decision in respect of the judicial review application. The “double might” test in the application of the construct of the fair-minded lay observer is relatively undemanding once sufficient facts exist to raise the possibility of actual bias or apprehended bias. It does not matter if the possible apprehension of a fair-minded lay observer involved only the possibility of a mind affected in a small degree by bias. A perception of only a little bias will invalidate a decision. Once the line of bias is crossed, there are no degrees of permissible judicial bias.
Multi‑Member Bench
Edelman J determined the multi member court issue at [133] and determined that:
… after a judge on a multi-member court has assessed issues of bias, if the judge has decided not to recuse themself or if the judge continues to sit then an application based on apprehended bias can be renewed to the court. Even if an application is not renewed, the court might consider the reasons of the subject judge when assessing its jurisdiction.
Since issues of bias have a jurisdictional dimension as well as an ethical dimension, the court must also have the ability to make such a collective decision concerning the recusal of one of its own members. If a majority of the court concludes that the member should be recused then that court, as constituted, has no jurisdiction to make orders.
Steward J
Reasonable Apprehension of bias
Steward J dissented and determined at [193] that Bromwich J was correct in deciding not to recluse himself.
Gleeson J
Reasonable Apprehension of bias
Gleeson J also dissented and determined at [269] that this is not a case in which the fair-minded lay observer might reasonably have contemplated that the judge might not bring to the resolution of the issues before the Full Court a disqualifying “frame of mind”.
Multi‑Member Bench
Gleeson J was not inclined to express an opinion about the practice of multi-member judicial panels faced with an application for disqualification of one of its members.
Jagot J
Apprehended Bias
Jagot J upheld the appeal and determined that there was a reasonable apprehension of bias.
Multi‑Member Bench
In relation to the issue of a multi‑member bench Jagot J held at [314]
In this context, an exercise of judicial power, the judge the subject of the issue of bias (apprehended or actual) should always decide the issue whether the judge is to sit, whether sitting as a single judge or as part of a multi‑member bench. No other judge exercising any form of co‑ordinate jurisdiction may decide that issue. Nor, on a multi‑member bench, may any judge prevent any other judge from sitting by an exercise of judicial power. This is dictated by well‑established convention. It also results from the lack of any apparent source of judicial power by judges exercising co‑ordinate jurisdiction to make any such order against the other judge.
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