Procedural quagmires in judicial bias applications – some clarity?

Lewis Hamilton

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15

A recent judgment of the High Court sheds light on the proper process multi-judge courts should undertake in dealing with judicial bias applications.

Pathway to the High Court

The appellant was a citizen of Burkina Faso. His visa was cancelled under section 501 of the Migration Act 1958 (Cth) after the Minister found he failed the character test based on what was said to be a substantial criminal record comprising a conviction in 2013 for importing a border-controlled drug, cocaine, with a potential wholesale value of $330,000. The appellant appealed the decision first to the Administrative Appeals Tribunal then by way of judicial review to the Federal Court. The appellant was unsuccessful at first instance and appealed to the Full Court.

On appeal, the Full Court comprised Bromwich, McKerracher and Griffiths JJ. Prior to his appointment to the bench, Bromwich J was Director of Public Prosecutions for the Commonwealth. Seven years prior to the appeal, his Honour acted in the appellant’s unsuccessful conviction appeal in the Victorian Court of Appeal.

Prior to the hearing in the Full Court, Bromwich J’s associate contacted the appellant’s legal representatives and advised that his Honour had acted in the prior conviction appeal. The appellant made an oral application for his Honour to recuse himself at the Full Court hearing. The Full Court deferred to his Honour to determine the application.

Bromwich J delivered reasons, declining to recuse himself. The hearing ran. The Full Court later delivered judgment on the merits of the case. In their joint reasons for judgment, McKerracher and Griffiths JJ did not consider the bias application. Bromwich J delivered separate reasons including his reasons on the bias application.

The appellant appealed to the High Court.

The Appeal in the High Court

On appeal the High Court considered two issues. Firstly, whether the circumstances were such to give rise to apprehended bias on the part of Bromwich J. Secondly, the proper process multi-judge courts should undertake to determine judicial bias applications and, specifically, whether such applications ought to be decided by the impugned judge alone, or by the full bench.

Apprehended Bias?

As to the first issue, the majority (Kiefel CJ, Gageler, Edelman, Jagot and Gordon JJ) allowed the appeal and found that Bromwich J ought to have recused himself for apprehended bias. All justices agreed (including Steward and Gleeson JJ in dissent) that the test for apprehended bias was that adopted by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344: 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.’

Central to the finding of apprehended bias by Kiefel CJ and Gageler J was the fact that Bromwich J had been the adversary of the appellant in a prior proceeding (at [44], [55]). Gordon J found the submission propounded by the respondent that the subject matter of the two proceedings was completely different had an ‘air of unreality’ and that the visa proceeding was closely tied to the criminal conviction proceeding (at [84]). Her Honour found Bromwich J’s roles in the two proceedings were incompatible and gave rise to the appearance of unfairness, impartiality, and a lack of independence (at [85]). Similarly, Edelman J found the conviction appeal was a ‘connected step’ in a process which concluded in the cancellation of the appellant’s visa and as such, a lay observer might have had a reasonable apprehension that Bromwich J could not have brought an impartial mind to the adjudication of the appeal (at [175]).

It was conceded by counsel for the Minister that if Bromwich J was affected by apprehended bias this would deprive the Full Court of its jurisdiction. The effect of the majority decision was that the appeal was allowed, and the decision of the Full Court set aside.

Proper procedure?

As to the second issue, Gordon, Edelman, and Steward JJ preferred a procedural approach where a multi-judge court must first give the judge in question the opportunity to decide the recusal application and only where the recusal application is refused, but the objection maintained, either by the proponent or on the court’s own motion, should the wider bench go on to decide the issue.

Although finding there ‘can be no universally applicable rules or procedures’, Gordon J concluded that the ‘preferable, if not proper’ course is for the relevant judge to be given the opportunity to decide a recusal application (at [93]-[94]). However, her Honour considered the next proper course, if the judge does not recuse themself, is for other members of the bench to take steps to satisfy themselves that they can discharge their judicial oaths and that the court has jurisdiction (at [102]) (the ‘first duty’ of the Court: at [27]).

Kiefel CJ and Gageler J preferred an approach that favoured the full bench acting cohesively to address bias applications (at [26] and [35]), stating:

‘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 the court as an institution and not merely with a member of the court whose impartiality might be called into question…The application that Bromwich J ‘recuse himself’ ought therefore to have been considered and determined by the Full Court.’

Despite judicial opinion weighing in favour of a judge deciding the first recusal application, as Edelman J noted at [110], such findings remain obiter dicta and ‘could never be’ the ratio decidendi of a judgment of the High Court given the substantive issue of bias, whether actual or apprehended, was the crux of the dispute. Edelman J considered (at [111]) that the ‘decisive factors’ in favour of the Court nevertheless addressing the issue, notwithstanding it did not remain an issue in dispute, was the ‘institutional importance of the issue’, coupled with the fact that, on an appeal to the High Court, it would never be an issue necessary to resolve a dispute between the parties. BN

Lewis Hamilton

Level 22 Chambers