Introduction
The Full Court of the Federal Court of Australia in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 has unanimously found that a statistical analysis of a judge’s previous decisions was irrelevant to the apprehended bias test. Although some of the mainstream media sought to place great significance on the proposed use of the statistical analysis in the proceedings, the Full Federal Court’s finding was not unexpected.
Background facts
The applicant, a Lebanese citizen, had originally come to Australia on a student visa. Shortly before the visa expired, he applied for a protection visa, claiming that he needed protection because of his religion. The protection visa was refused by the Minister’s delegate and the delegate’s decision was affirmed by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“Tribunal”).
Federal Circuit Court proceedings
The applicant then applied to the Federal Circuit Court of Australia (“FCCA”) for an extension of time under s 477(2) of the Migration Act 1958 (Cth) to enable him to seek judicial review of the Tribunal’s decision.
At the commencement of the hearing in the FCCA, the applicant sought leave to file an amended application seeking, amongst other things, an order that the judge disqualify himself. The recusal application was said to be based on a reasonable apprehension of bias arising from the judge’s prior conduct.
The recusal application was supported by an affidavit sworn by a Mr Kline, the editor of the Federal Court Reports and the Federal Law Reports. In his affidavit, the editor deposed to having reviewed all the judge’s judgments in the period from the judge’s appointment on 1 January 2015 to 19 June 2015. In summary, the findings of the editor included the following:
- During the relevant period, 254 decisions of the judge were in the area of immigration law where the Minister was the respondent.
- In all 254 or 100% of the immigration judgments, the judgments were, or appeared to be, delivered ex tempore.
- Only in two of the 254 immigration judgments, or 0.79% of the immigration judgments, the judge found in favour of the applicant against the Minister.
- In 252 out of the 254 immigration judgments, or 99.21%, the judge found in favour of the Minister.
- In at least 163 of the 254 immigration judgments, or 64.96%, the immigration judgments were given at the first court date. In approximately another dozen cases it was not possible to tell if they were delivered at the first court date or not.
- During the relevant period, the remaining eight judges of the FCCA in Sydney delivered 309 immigration judgments, or 54.89% of the immigration judgments in the Sydney Registry of the FCCA, whilst the judge in question personally delivered 45.11% of the immigration judgments.
- The most recent Annual Report of the Migration Review Tribunal (“MRT”) – Refugee Review Tribunal (“RRT”) disclosed that 10.8% of MRT decisions and 12.2% of RRT decisions were set aside, compared with only 0.79% being set aside by the judge on judicial review.
The applicant claimed that the judge was predisposed to the view that applications in immigration matters were without merit and that the judge’s previously stated views and conduct were characterised by such trenchancy that it was not possible for him to hear the applicant’s application with an open mind.
The judge heard the recusal application and dismissed it. The judge then proceeded to hear and determine the applicant’s application for an extension of time to enable the applicant to seek judicial review of the Tribunal’s decision. The judge refused to extend time.
Full Federal Court proceedings
Applications and decision
The applicant then applied to the Full Federal Court for an extension of time for leave to appeal against the judge’s decision to dismiss the applicant’s recusal application and for judicial review under s 39B of the Judiciary Act 1903 (Cth) of the FCCA’s decision. The Full Federal Court (Allsop CJ, Kenny and Griffiths JJ) dismissed the applications.
The statistical analysis material
The pivotal ground of review was that the judge had denied the applicant procedural fairness by refusing to disqualify himself due to reasonable apprehension of bias.
The Full Federal Court observed at [35] that the apprehended bias test was relatively well settled and was “whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits”.
The editor’s affidavit had been admitted into evidence subject to an objection by the Minister based on relevance and the applicant had contended that the statistical material in the affidavit should be attributed to the hypothetical observer without any further analysis or attempt to go behind the raw statistics and that, if this approach was followed, apprehended bias would be made out.
The Full Federal Court, however, rejected these contentions and upheld the Minister’s objection to the editor’s affidavit. The Court did so for five reasons (see [38]-[45]):
- In the absence of a relevant analysis of the individual immigration judgments decided by the judge so that the raw statistics were placed in a proper context, the hypothetical observer would not be able to make an informed assessment of the significance of the raw statistics. It could be, for example, that a close analysis of some, many, or all of the relevant judgments might reveal that they had been determined on a reasonable and plausible basis. And, even if some or all of the judgments were wrongly decided, that could be as a result of human frailty on the part of the judge and not prejudgment.
- Raw statistics concerning the outcome of immigration matters which had been decided by the judge compared with other FCCA judges or the outcomes of MRT-RRT decisions generally did not necessarily indicate prejudgment because the fact that it might be easier to persuade one judge of a proposition than it was to persuade another did not mean that either of them was affected by bias.
- The statistics from the Annual Report of the MRT-RRT were irrelevant, first, because they related to the period 2013-2014 which was prior to the judge’s appointment and, second, because they were not confined to the outcome in the FCCA of judicial review proceedings of MRT-RRT decisions, but also included appeal proceedings in the Federal Court and the High Court. Therefore, they did not provide a valid “control” for statistical purposes.
- The mere fact that a particular judge had decided a number of cases, the facts and circumstances of which were unknown, one way rather than another, did not assist the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge. As was observed in Vietnam Veterans’ Association of Australia (New South Wales Branch Inc) v Gallagher [1994] FCA 489; (1994) 52 FCR 34 at [26] and [33]:
- All such evidence could show was that, because a decision-maker had decided a particular kind of case in a particular way in the past, he or she was likely to decide a case of the same nature in the same way in the future. This did not make out a case of apparent bias. That it might be predicted from a judge’s ‘track record’ that he or she might, for example, award greater damages for the same sort of injury than another judge was the very reason that the listing of cases was a jealously guarded element of any system of justice.
- Even if incorrectness was proved and shown to exist at a higher level compared with the decisions of panels without the decision-maker in question that did not establish a circumstance which might give rise to a reasonable apprehension of bias. All court systems and many administrative decision-making systems provided for appeals and, as part of such appeal processes, decisions were routinely set aside for errors of fact or law. However, in the vast majority of such cases there was no suggestion of apparent bias.
- The affidavit was irrelevant to the recusal application because the statistical analysis it contained related to a period which ended on 19 June 2015. This was the date on which the Full Federal Court had published its reasons for judgment in SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; (2015) 229 FCR 317 (“SZWBH”) and Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 (“Shrestha”). In those cases, the Full Federal Court had been critical of the judge’s practice in immigration cases of dismissing the matters summarily at the first court date, without prior notice to the applicant and, in one case, over the opposition of the Minister. The recusal judgment by the judge had, however, been handed down after 19 June 2015. The judge’s conduct prior to 19 June 2015 was irrelevant to an allegation of apprehended bias in a case which post-dated SZWBH and Shrestha. The judge had not disposed of the application for an extension of time at the first return date but had considered the evidence filed by the applicant and addressed the submissions made on the applicant’s behalf. These circumstances were very different from those which had arisen in cases such as SZWBH and Shrestha.
Phrases allegedly used by the judge
The applicant had also claimed that there was apprehended bias because the judge had repeatedly used phrases such as “no substance” or “it is clear” in many of his immigration judgments. However, the Full Federal Court said at [46] that no evidence had been adduced to substantiate this claim and that, in any event, even if the judge had repeatedly used those expressions, this was not probative of whether the hypothetical observer might apprehend that the judge might not bring an open mind to bear in determining the applicant’s proceedings. The Full Court observed that such phrases were not uncommonly used by judges and that their use, even frequently, would not of itself indicate to the hypothetical observer that a judge might be biased, at least without the hypothetical observer knowing more about the context in which the phrases were used.
Other matters
The Full Federal Court ordered the applicant to pay the Minister’s costs of the applications. The Full Federal Court at [51] rejected the applicant’s characterisation of the proceedings as “a public interest test case” or one which was aimed at preserving public confidence in the judiciary and said that the proceedings were primarily designed to advance the applicant’s personal rights and interests under migration law.
The Full Federal Court also recorded, at [53]-[68], concerns about some aspects of the manner in which the applicant’s legal representatives had conducted the proceedings. The Court said that the relevant conduct was “most unsatisfactory and should not be repeated” and that if it was repeated, then consideration might need to be given to making personal costs orders.
