Federal Court of Australia

Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 99

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent's cost of the appeal, to be assessed by a registrar of the Court if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Mr Bullmore, is a national of the United Kingdom. In 2017 his visa for Australia was cancelled under s 501(3A) of the Migration Act 1958 (Cth), because of his substantial criminal record. A delegate of the first respondent (Minister) refused to revoke the cancellation under s 501CA(4), and the Administrative Appeals Tribunal affirmed that decision. On 6 August 2020, the primary judge made orders dismissing an application by Mr Bullmore for judicial review of the Tribunal's decision.

2    This appeal from those orders is principally based on contentions that the primary judge's conduct of the hearing was such as to give rise to a reasonable apprehension of bias or other denial of procedural fairness. For the following reasons, the appeal will be dismissed.

The Tribunal's decision

3    At the hearing before the Tribunal, both Mr Bullmore and the Minister were represented by solicitors.

4    For the most part, the reasons the Tribunal gave are not relevant in the appeal. But of indirect relevance is the Tribunal's consideration of three offences for which Mr Bullmore was either convicted of an offence, or there was a verdict of charges proven. They are relevant because, as will be described below, they formed the basis of one of the grounds of review advanced before the primary judge. It is in relation to that ground that his Honour's conduct of the hearing is said to have given rise to a reasonable apprehension of bias.

5    By way of context, none of the three indirectly relevant offences resulted in the cancellation of Mr Bullmore's visa; that was because of a conviction of rape. The first offence of relevance here resulted in convictions for obtaining property by deception in Victoria in 1995. The second resulted in convictions for obtaining financial advantage by deception that were entered in Victoria in 2004. The third matter was a charge of common assault which in 2012 in Queensland was found to have been proven, although no conviction was recorded and a fine was imposed.

6    What these offences had in common was that in each case, the Tribunal had the police incident summary report. Before the Tribunal, Mr Bullmore had given evidence denying or minimising his offending, and in each case the Tribunal recorded and found preferable the contents of the police reports. It is not necessary to set out the Tribunal's reasoning on the point in order to understand the grounds of the current appeal. It is enough to note that the Tribunal relied on the police incident summaries in order to characterise Mr Bullmore's evidence before it as downplaying particular circumstances and laying blame at the feet of others, or giving partial evidence in order to put the best complexion on certain offences, even though he knew that the police incident summaries contradicting his account were before the Tribunal.

The proceeding below

The grounds of review

7    As set out in the originating application before the primary judge, the relevant ground was:

1.    The Tribunal denied the Applicant procedural fairness when it admitted into evidence and/or relied on police summaries which contained assertions that were untestable by the Applicant because the Minister did not disclose the identities of, and elected not to call, the makers of those assertions.

This was particularised by reference to the police summaries of the three incidents detailed above.

8    There were two other grounds in the originating application, but by the time of the hearing only grounds 1 and 3 were pressed. Ground 3 is not relevant to the appeal.

The hearing before the primary judge

9    It is sufficient to expose the issues on the appeal to set out relevant excerpts of the transcript of the hearing before the primary judge. Contentions of the kind made by Mr Bullmore require examination of the course of the entire hearing, so it is necessary to set the excerpts out at some length.

10    The hearing took place during the COVID pandemic and was conducted by video. Mr Bullmore was represented by experienced counsel, Min Guo. It is also relevant to note that Mr Guo's instructing solicitor was the solicitor who represented Mr Bullmore before the Tribunal.

11    The primary judge opened the hearing by saying that he had read the submissions of counsel on both sides and found them helpful. After preliminaries, Mr Guo commenced his submissions in relation to ground 1. He submitted that while the Tribunal was not bound by the rules of evidence, it was required to afford procedural fairness to those appearing before it.

12    Mr Guo said that 'the Minister has spent quite some column inches in his written submissions' saying that, before the Tribunal, he complied with the rule in Browne v Dunn. Mr Guo submitted that this was not to the point; the point, he said, was that 'there has been an unfairness because … the Minister relied on hearsay statements and invited the Tribunal to believe those hearsay statements when we were not able to cross-examine and test the content of those statements'.

13    Shortly after that, the following exchange occurred between Mr Guo and the primary judge:

HIS HONOUR: So - but the real issue you have to address, isn't it, is that your client was represented by lawyers before the Tribunal and allowed the three police summaries to be tendered without objection. So what need was there for the Minister to proffer up the police officers?

MR GUO: It's not the point that there was no objection, because there can be a denial of procedural fairness without a point strictly being taken. We didn't - my client - - -

HIS HONOUR: It's a very difficult point though, isn't it, for you, Mr Guo?

MR GUO: Well - - -

HIS HONOUR: That if - and if - before the Tribunal the legal representatives of your client permitted these police summaries to be tendered absolutely without objection to now, on an appeal - or judicial review, more accurately - contest that there has been a denial of procedural fairness when the legal representatives had the opportunity to object to the admissibility of the police statements, point out to the Tribunal that they were hearsay and unsubstantiated, but they didn't do that. They allowed the [Tribunal] to receive absolutely the three police summaries.

MR GUO: And that all occurred in the context where there was no precision at all by the Minister in saying what these documents would be used for. Now, if my client had sought to make the objection, ultimately it would not have mattered much, for this reason, your Honour. Because we would not have been able to see with any foresight how those statements would actually be used by the Tribunal in its reasons. So we have this method of inquiry which is both inquisitorial and adversarial. And I don't want to place too much emphasis on that except to say that what matters is now the Tribunal will use these documents. And the Tribunal is permitted to inform itself in any way it thinks fit, including over the objection of the applicant's - if that was actually made, but it wasn't. But it still stands to reason that the way the Tribunal would have used these documents was not known to us. So then - - -

HIS HONOUR: Is that right, Mr Guo, in circumstances where it's said in the submissions filed by - on behalf of the Minister that the statement of facts and contentions referred to the police summaries and the content of the police summaries. So surely that would have put any competent legal representative of your client on notice as to the way in which the Minister was going to use the three summaries?

14    Mr Guo then took the primary judge to the Minister's statement of issues, facts and contentions in the Tribunal, which only refers in a general way to the material summonsed from the Victoria Police and the Queensland Police in support of a contention that Mr Bullmore had 'an extensive criminal history'. This was footnoted by reference to the entire bundle of summonsed material received from those two police forces, which contained much material other than the three records on which the Tribunal focussed in its reasons.

15    Mr Guo described that material as having been 'put in by the Minister holus-bolus'. The primary judge asked, 'What more would you have expected?' Mr Guo submitted in response that what was missing was an indication of the specific way in which the Tribunal would use the materials, as set out above, as a basis to disbelieve Mr Bullmore, both in relation to the specific incidents and in relation to his general credibility.

16    The following exchange ensued, which is at the heart of Mr Bullmore's complaints on appeal and must be set out at length (commencing at page 6 of the transcript):

HIS HONOUR: Just a minute. The difficulty with all of that is you accept, obviously, that your client was convicted by a jury and then he lost his appeal to the Court of Appeal in relation to the offences. That's correct, is it not?

MR GUO: That's correct.

[ts 7]

HIS HONOUR: Yes. And then the Tribunal preferred the contemporaneous notes of the police officers to the oral evidence of your client, and you're saying that procedural fairness was denied because you were, what, not told which pages of the police summaries that were going to be relied upon by the Minister? What's the unfairness?

MR GUO: No, with respect, your Honour. That is not how we put ground 1. We put ground 1 on the basis that there is a hearsay - there is a version of events written in this material with which my client disagreed. Now, he was able to say he disagreed - in fact, I need to go back a step, your Honour - - -

HIS HONOUR: He wasn't accepted on his oath.

MR GUO: I need to go back a step, your Honour, because - - -

HIS HONOUR: ....., Mr Guo, your client was not accepted on his oath. That was open to the Tribunal to find. He didn't - the Tribunal did not believe your client and placed weight, greater weight, for the reason that it said, that your client's answers were inconsistent and vague and general, and put emphasis on the contemporaneous written notes of the police officer. Why wasn't that something the Tribunal could do?

MR GUO: Your Honour, can I take the court back to what I say is the vice in the Queensland Police material to begin with.

HIS HONOUR: Yes.

MR GUO: So to be clear, I'm not talking about the rape incident, I'm talking about the common assault with the real estate agent. Now, what happened there was the Minister took my client in cross-examination through the asserted version of events as to what the real estate agent said happened to her.

HIS HONOUR: Yes.

MR GUO: My client denied that what was asserted to have happen in fact happened. He gave - well, on this he denied that he had been verbally abusive, he denied calling her 'a bitch', denied throwing her out, and denied having lunged forward and grabbed her on the shoulders. They were the allegations put ..... - - -

HIS HONOUR: So put fairly and squarely to your client for the opportunity to comment.

MR GUO: Yes.

HIS HONOUR: Where's the procedural unfairness in that?

MR GUO: The unfairness is this. He can deny it but that only goes so far when the central issue is should he be believed as to whether he is a risk. As we know, and [ts 8] I trust that I'm not being too generic with this statement. We know as advocates that it is one thing to put your client in the box and have him or her deny what's being put. But it's quite another thing forensically to be able to persuade the trier of fact, quite another thing to also cross-examine the maker of the allegations and test his or her allegations.

HIS HONOUR: But your client could have subpoenaed the police officers if that was the course they chose to adopt, which they did not.

MR GUO: So - - -

HIS HONOUR: They allowed these documents to be tendered absolutely in evidence.

MR GUO: So - - -

HIS HONOUR: ..... should have objected to the tender and insisted on the maker of the statement being called. They did not do so.

MR GUO: Well, I accept that did not occur, your Honour. But - - -

HIS HONOUR: Well, that's the problem, isn't it?

MR GUO: No, it's not a complete answer, your Honour.

HIS HONOUR: It's the incompetence of the people below.

MR GUO: Well - - -

HIS HONOUR: Who were acting on behalf of your client at the time.

MR GUO: I have some difficulty with what has just been described as how the case was conducted below. I'm not sure we need to go that far.

HIS HONOUR: Well, what have I got wrong, Mr Guo? Because I'm here to listen to your case and to listen to the way you put the case on behalf of your client. What have I got wrong? The three police summaries were tendered in evidence without objection - - -

MR GUO: Without objection - - -

HIS HONOUR: - - - below and your clients did not seek to insist that the makers of the statement be called to give evidence so that they could cross-examine them. The statements have gone in and then subsequently the statements have been put to your client in evidence, he has given his version of events and the Tribunal has rejected that and accepted the contemporaneous documentary evidence. Which was - went in unobjected by your client. Where's the unfairness in that?

[ts 9]

MR GUO: The unfairness is as I have - can I say this, your Honour. I have heard everything that your Honour has put to me and I can see why your Honour is putting what you have with the force you have. And so, in that sense, I just want to make these submissions so that my client's position is clear, with respect.

HIS HONOUR: You proceed, Mr Guo. There's no criticism of you in what I'm putting to you, I just want to understand what your case is.

MR GUO: Well, the case is it is not enough - even accepting that my client's lawyer did not object below, even accepting that. It is not enough for him to have had put to him by the Minister below these propositions, and therefore the Minister to say, 'Well, you've had your opportunity to meet the case so there's no denial of procedural fairness.' We say that is not enough, because when the central issue is about credit the forensic exercise of persuading the finding - the finder of - the trier of fact is not just about putting your own person in the box and having him deny what's put to him. It's also about being able to test the allegations that are put against him by cross-examination. Now - - -

HIS HONOUR: Just pausing there, Mr Guo.

MR GUO: Well, I ..... - - -

HIS HONOUR: Just ..... what you say - just tell me what you say should have taken place to accord procedural fairness to your client. What should have occurred? You tell me.

MR GUO: The Minister should have called the maker of the assertions. And it is no answer to say that my client should have called these police officers because, firstly - there are two reasons. Firstly, with respect to the Queensland Police documents, the maker of the assertion is not identified. And I will take your Honour to the material to make good that proposition. So contrary to what the Minister says - if I can ask your Honour to turn to - - -

HIS HONOUR: Just before we go to that, Mr Guo, you still have to grapple with the point that the - the only reason you call the maker of the statement is to make these documents admissible. Do you accept that proposition?

MR GUO: That is not - no. I do not accept that proposition, your Honour.

HIS HONOUR: Right. So I thought the whole point of your story was that these statements in the police summaries should not have been relied upon by the Tribunal because the maker of the statement was not called. That's your position, is it not?

MR GUO: But it's not just that bare fact, because the unfairness is complete and only complete when the Tribunal uses it in the way that it did. Now - - -

[ts 10]

HIS HONOUR: But your client's representatives allowed it in untested. They did not object - - -

MR GUO: I accept that they - - -

HIS HONOUR: - - - to available evidence before the Tribunal that the Tribunal can rely upon, particularly in circumstances where you accept that this material was put to your client. Your complaint is that the Tribunal did not accept the denials of your client over the contemporaneous police summaries. That's your complaint.

MR GUO: My complaint is that occurred when my client had no opportunity to forensically test the truth of what was asserted against him .....

HIS HONOUR: And then he could have objected to the summaries being tendered.

MR GUO: And my submission in response to that, your Honour, as I've sought to submit, with respect, several times, that that is not enough. So I - - -

HIS HONOUR: So what? The police were meant to say, 'You've allowed this evidence in without objection, but we will now just make available to you the police officers.'

MR GUO: Your Honour, the exercise, with respect, is much more than about whether my client objected or not. The question is, in all the circumstances, what was it open - for the powers it opened, was it open for the Tribunal to use as a rational, logical and probative way the fact of, firstly, the hearsay statements put to him and, secondly, his denial of those hearsay statements. Was it open to the Tribunal to conclude from that, and that alone, that my client should not have been believed. And I say - - -

HIS HONOUR: Well ..... Mr Guo, because of the very reasons you've outlined. The statements went in unobjected, the Minister's solicitor cross-examined your client on the statements, your client responded to those statements, your client's evidence was not accepted by the Tribunal. What is unfair about all of that? Your client had an opportunity to comment on it, your client was represented by legal representatives at first instance and he has commented on it and the Tribunal said, 'No, I don't accept that evidence. I accept the written police summaries.'

MR GUO: And the prejudicial nature of what was said against him is still there, even if my ..... even if my client - - -

HIS HONOUR: ..... still accept your client was telling the truth, Mr Guo. It happens all the time in court.

MR GUO: It does happen all the time in court, but it only happens in court once the person has been given a proper opportunity to respond to the allegation that he is lying in the box. That is not enough - - -

[ts 11]

HIS HONOUR: ..... put to him. You don't have to say - you only have to put the substance of the material. You don't have to say, 'And you're a liar, aren't you?'

MR GUO: No, I'm not - - -

HIS HONOUR: That's where your submissions misconstrue the rule in Browne v Dunn.

MR GUO: Your Honour - - -

HIS HONOUR: It's an opportunity to know the case that's put against you, not to say, 'And, finally, I put it to you you're a liar.'

MR GUO: Your Honour, that is not - - -

HIS HONOUR: That is not what Browne v Dunn requires.

MR GUO: No, and me and my learned friend are in furious agreement on that, because Browne v Dunn - - -

HIS HONOUR: Then why did you say in your submissions that it was never put that he was a liar? You say it repeatedly.

MR GUO: Because that is the context in which there should be a finding, and I'm inviting your Honour to find - but it is clear that your Honour is not going to find - that is the context in - - -

HIS HONOUR: I haven't decided anything, Mr Guo, yet.

MR GUO: Well, your Honour - - -

HIS HONOUR: I'm testing your propositions.

MR GUO: Well, I withdraw what I've just said, but the reason why - - -

HIS HONOUR: You should - - -

MR GUO: The reason - - -

HIS HONOUR: You should withdraw it.

MR GUO: Well, I've withdrawn what I've said, your Honour. But the reason why I've referred to Browne v Dunn no more than I have in my written submissions is because that is part of the context in which we say there was a denial of procedural fairness. We do not say that a breach of Browne v Dunn is the reason why there was a denial of procedural fairness. That is not found anywhere in our written submissions, and that is not part of our case. We say the unfairness is the use of the [ts 12] documents, not because of any supposed failure to meet the requirement in Browne v Dunn.

HIS HONOUR: So how were the documents used unfairly then, Mr Guo?

MR GUO: Because my client was not given an opportunity to test the truth of the statements.

HIS HONOUR: Because your client's representatives allowed the documents to be admitted.

MR GUO: And I say that is not a complete answer.

HIS HONOUR: Right.

MR GUO: Now, there are two parts to what I've just sought to say. First, as I was seeking to take your Honour to, the Queensland Police documents that are the subject of this contest do not actually identify - contrary to the Minister's written submissions, do not actually identify the maker of the assertions.

HIS HONOUR: But does that make any difference in circumstances where your client's representatives allowed the documents to be tendered absolutely and unchallenged? What's the point? If they weren't going to object to the documents, what does it matter?

MR GUO: The point is raised against us, your Honour, that we should have somehow been able to and should have called the maker of these statements and I'm simply saying that contention cannot stand, because the maker of the statements was not identified. We've got the names of some other police officers, or police officer, in respect of the Queensland Police Service documents, but he is not identified as the maker of the statement and, in any event, even if it was, we are in an adversarial proceeding where the Minister is positively putting a case against my client and it is unreal, with respect to the Minister, to suggest that we should be calling a witness in their camp. We would be calling a witness to have him declared as hostile, so that we could then cross-examine out of him what should actually be put to him by the Minister. We say that - - -

HIS HONOUR: ..... precisely, Mr Guo, which goes to show why there's no substance to this claim of a denial of procedural fairness, in circumstances where the legal representatives allowed the statements to be tendered absolutely.

MR GUO: Your Honour, I'm going over territory that I've already gone over and, with respect, repetition won't improve my point.

HIS HONOUR: Yes, I agree.

MR GUO: They are the submissions - - -

[ts 13]

HIS HONOUR: Move to your next point.

MR GUO: They are the submissions in respect of the second and third police documents. The submissions are the same. I accept that there are police officers' names that appear in respect of the second police summary and third police summary, but the point, again, is the same. These are people who were in the Minister's camp and it would have been, with respect, unreal for us to be calling them because they are only plainly going to be hostile witnesses. This is an adversarial proceeding and it was for the Minister to call them. That is the point - - -

HIS HONOUR: But that's the whole point, isn't it? You say it was for the Minister to call them. Well, that was - that would have been correct if the legal representatives of the applicant had objected to the tender of the statements, but there was no obligation on the Minister to call the police officers when the statements were tendered absolutely before the Tribunal. What possible obligation was there?

MR GUO: Your Honour, I've made my submissions.

HIS HONOUR: Yes.

MR GUO: And, again, repetition won't improve what I've already put to your Honour.

17    We will analyse this lengthy passage when we come to consider the first ground of appeal below.

18    Mr Guo then went on to make his oral submissions about the third ground of review. There is no need to set out those passages from the transcript; while Mr Bullmore's written submissions to this Court briefly assert that his complaints concern all the grounds of review, he identified nothing specific about the primary judge's conduct of the latter part of the hearing that was said to bespeak bias. Nor could he reasonably do so.

19    At the end of his submissions in chief, Mr Guo said:

…your Honour said to me something, in the course of me making my submissions about ground 1, that my instructor was 'incompetent.' And with respect, if your Honour is going to make a finding along those lines, then my client's instructor should be given an opportunity to respond. But if your Honour is not predisposed to make a finding of that kind, then I don't need to take that matter any further.

His Honour simply thanked Mr Guo, and counsel for the Minister commenced her oral submissions.

20    Those oral submissions commenced by dealing with ground 3. After that, counsel for the Minister said she could not usefully add to her written submissions in relation to ground 1. At that point the primary judge asked her what she said to Mr Guo's submission that the Minister should have made available the police officers who made the police summaries. Counsel then answered the question at some length.

21    Finally, it is worth noting that at the very end of the hearing, the primary judge asked Mr Guo whether there were any other matters he wished to put to his Honour, and Mr Guo said no.

The primary judge's reasons for decision

22    Given the nature of the grounds of appeal, it is not necessary to canvass the primary judge's reasons at any length.

23    Only two aspects of the primary judge's reasons are potentially relevant. One is his Honour's treatment of an argument said to have been based on the rule in Browne v Dunn. That is the subject of Mr Bullmore's fourth ground of appeal (excerpted below), and we will describe the way his Honour dealt with the point when we come to consider that ground.

24    The other relevant aspect of the primary judge's decision is his Honour's summary of why he concluded that the Tribunal did not deny Mr Bullmore procedural fairness when it took the police incident summaries into account. While Mr Bullmore's appeal is predominantly based on his allegations of apprehended bias, as will be seen he does argue that the primary judge made an error in deciding that the absence of any objection to the summaries made them 'admissible'.

25    The relevant passage appears after the primary judge summarised the principles governing procedural fairness in the course of hearings. His Honour then proceeded as follows:

[80]    Given these principles, the question becomes whether they were adhered to in the course of the Applicant's hearing. An objective reading of the proceeding in the Tribunal indicates the Tribunal complied with those principles for the following reasons.

[81]    First, the Minister placed the Applicant's past criminal conduct squarely in issue before the Tribunal. The Relevant Documents indicate that the Minister provided to the Tribunal on or around 24 October 2019 a 'Statement of Issues, Facts and Contentions'. That statement, filed before the Tribunal hearing, referred to the Applicant's criminal history including that which was contained in the documents produced by the summonses directed to Victoria and Queensland Police and the three Police Summaries. As a result, the Applicant's legal representatives before the Tribunal were on notice as to the case that was being made against the Applicant by the Minister before the Tribunal.

[82]    Second, the Police Summaries were provided to the Tribunal without any objection. On 4 June 2020, the Applicant's solicitor filed an unsworn affidavit which annexed a copy of the transcript of the Tribunal's hearing of this matter on 31 October 2019 (the Transcript). (I presume the affidavit may have been unsworn due to reasons associated with COVID-19.) The parties' submissions referred to the Transcript. The Transcript records that, at the beginning of the Tribunal hearing, the Police Summaries were 'tendered' as part of the 'G Documents'. The Applicant's legal representatives in the Tribunal did not at that time (or, as far as I can tell, at any other time) object to the Tribunal receiving and considering those Police Summaries.

[83]    Third, it is clear that 'due notice' (Sullivan at [46]-[48] (per Logan J)) of the Police Summaries was given to the Applicant: prior to the hearing before the Tribunal, the Applicant's legal representatives had access to the documents that were produced under summons which included the three Police Summaries. Those representatives were therefore on notice of the nature and content of those documents. It was also open to the Applicant to write to the Minister's solicitors and seek from the Minister the identities of relevant police officers that could provide evidence concerning the Police Summaries. If the Minister's solicitors were uncooperative in that regard, the Applicant may have sought the assistance of the Tribunal. The Relevant Documents indicate that was not done and there might well be quite legitimate forensic reasons why that is so.

[84]    Fourth, the Applicant's solicitors made closing submissions in the Tribunal hearing. It was open to the Applicant at that stage to further address the matters referred to in the Police Summaries. It appears that course was not taken and that approach may have been pursued on reasonable bases directed towards the presentation of the Applicant's case in the Tribunal.

[85]    Fifth, there was no obligation on the Minister to produce the relevant police officers for cross-examination. Those police officers were the makers of the statements contained in the three Police Summaries. The Minister was not required to produce these officers in circumstances where the Applicant's legal representatives before the Tribunal did not object to the tender of the three Police Summaries. In any event, the Applicant's legal representatives did not request the attendance of the police officers at the hearing before the Tribunal, or otherwise write to the Minister's solicitor to enquire about those officers' identities. If the Minister's solicitors were uncooperative in this regard, again, it would have been open to the Applicant to seek the assistance of the Tribunal concerning that aspect. There was no evidence presented to this Court that the Applicant did so.

[86]    Sixth, and importantly, the Applicant was taken to each of the Police Summaries in the course of cross-examination. The Applicant was given ample opportunity to comment upon them. The Transcript records that the Minister's solicitor indicated to the Tribunal that certain material was provided to the Tribunal, namely a 'bundle from Victoria Police' and a 'bundle from the Queensland Police' that was 'produced under summons' (Transcript at 44). The Transcript indicates those documents were put to the Applicant during cross-examination in the Tribunal.

The grounds of appeal

26    Mr Bullmore is self-represented in this appeal. His grounds of appeal are:

1.    [The primary judge] erred on grounds of bias against the applicant, by denying the applicant's counsel the right to put forward completed argument and submissions and should have recused himself on a point of bias.

2.    The applicant was denied procedural fairness when [the primary judge] inferred the applicant's attorney should have objected at the time of the AAT hearing and failure to do so implied that he was incompetent. This demonstrated bias on [behalf] of [the primary judge].

3.    If legal [counsel] is incompetent an applicant cannot be prejudiced by incompetent representation. A judge has a responsibility to the court to ensure judicial fairness and natural justice. If a Judge is of the opinion an attorney is incompetent, he/she must intervene to ensure the rule of law. No less than if an applicant was self-represented.

4.    [The primary judge] in summary, focused on [Browne] v Dunn, as his reasons for judgement, which did not form part of the applicant's case. The judges focus on [Browne] v Dunn, in a manner as if the applicant was reliant upon the precedent as support of submissions, demonstrates further bias against the applicant's case.

5.    The Applicant in the AAT hearing objected to the questionable evidence being admissible and was shut down by the Member. If indeed an applicant has an incompetent attorney to the degree where they fail to object to admissibility of evidence, where the applicant feels compelled to do so themselves. It cannot be later be deemed that the applicant had accepted the admissibility of the evidence by the failure of objection; the very conclusion that [the primary judge] made in his ruling.

27    Mr Bullmore's written submissions suggest that the first ground of appeal is based on apprehended bias, not actual bias. Since the former is easier to establish than the latter, it is favourable to Mr Bullmore to treat the contention as one of apprehended bias.

Principles

Apprehended bias

28    It is necessary that we, as an appellate court, determine the issue of bias before any other: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ).

29    It is well established that the test for apprehended bias 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing, footnotes removed).

30    Ebner was a case where company shares held by the trial judge were alleged to give rise to a reasonable apprehension of bias. Mr Bullmore does not point to any relevant interest or association on the part of the primary judge here. Rather, he alleges 'disqualification by conduct', as Deane J put it in Webb v The Queen (1994) 181 CLR 41 at 74, meaning conduct in the course of, or outside, the proceedings that gives rise to an apprehension of bias. To adapt the test in Ebner to the present situation, then, Mr Bullmore must establish that the primary judge's conduct of the hearing was such as to mean that the fair-minded lay observer might reasonably have apprehended that his Honour might not bring an impartial and unprejudiced mind to the resolution of the questions before him: see also Webb at 75; Concrete at [55] (Kirby and Crennan JJ, Gummow ACJ agreeing).

31    Despite the 'double might' nature of the test, the reasonable apprehension of bias must be firmly established: R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50 (Gibbs ACJ); Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J). In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, Allsop CJ, Kenny and Griffiths JJ said (at [36(b)]) that:

an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be 'distinctly made and clearly proved' (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J) …

32    Whether judicial intervention and observations have exceeded a proper and reasonable expression of tentative views is a matter of judgment taking into account all the circumstances of the case: Concrete at [112]. The fair-minded observer will base his or her opinion on the judge's conduct of the entire hearing: see Galea v Galea (1990) 19 NSWLR 263 at 279 (Kirby ACJ, Meagher JA agreeing).

33    In evaluating that conduct, two related points need to be borne in mind. The first is that, despite the need both to be impartial and to appear to be so, a judge (at least one sitting without a jury) is not precluded from expressing views in the course of a hearing. Dialogue between the bench and the bar table, including disclosure of views held by the judge, is helpful in identifying the real issues and problems in a particular case: see Vakauta v Kelly (1989) 167 CLR 568 at 571 (Brennan, Deane and Gaudron JJ). As their Honours went on to say (at 571):

a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown, until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.

34    Or, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ put it in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13]:

Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

35    That is not to say, however, that tentative views must always be expressed in tentative form. In Antoun v The Queen [2006] HCA 2, Kirby J made the following observations (footnotes removed) about what his Honour called the 'first point', which was (at [26(1)]) whether 'the trial judge's expression of views was "forthright" and "strong" but not sufficiently excessive to require disqualification':

[27]    So far as the first point is concerned, it is certainly true that the trial judge's remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.

[28]    One of the advantages of a judge-alone trial is that it permits greater efficiency in the isolation of the real issues that will determine the case. Nevertheless, normally at least, it is essential that the judge give parties or their representatives at least some time to advance their submissions. This is because, however abbreviated proceedings may become by reason of pre-trial procedures, the tender of written submissions and other innovations, in a trial (particularly a criminal trial where liberty is at risk) the process conducted in public has its own significance and purpose. The manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness. Excessively telescoping the procedures in such cases can lead to a sense of disquiet on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented, and given effect, by appellate courts.

[29]    A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this Court that the trial judge crossed it.

36    Thus even critical, strong and candid interventions do not necessarily lead to a conclusion of apprehended bias: see Concrete at [180] (Callinan J). Judges are entitled to intervene to ensure that they understand the arguments, the issues and the evidence: see Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530 at [26] (Greenwood and Rangiah JJ); Concrete at [4], [114]. Indeed, it can enhance the procedural fairness of a hearing for the judge to 'expose to the party who may be adversely affected (and that party's representatives) preconceptions, opinions and formulating conclusions so that the party has an opportunity, before judgment, to be heard to correct and to persuade': see Galea at 279.

37    While the fair-minded observer is not assumed to have a detailed knowledge of the law, or of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The observer will not be completely unaware of the way in which cases are brought to trial and tried: Concrete at [177] (Callinan J). They will thus be taken to be aware of the characteristics of modern judicial practice described above: see Johnson at [13].

38    The second, related point to be borne in mind is that the primary judge was not required to suspend absolutely the formation of any opinion on the matter until after he returned to chambers. After all, it would have been open to his Honour to have told counsel for the Minister that she did not need to address him on ground 1, and to have delivered judgment immediately at the conclusion of submissions. Further, as Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72] (concerning actual bias):

… Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. …

… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. …

39    For apprehended bias to be shown, the judge's conduct must have been such to mean that the fair-minded lay observer might reasonably infer that his Honour's mind might have become closed during the hearing at a point where, for the hearing to be seen to be fair, his Honour should have been seen to be open to persuasion. Or, given the basis of the present appeal, that a fair-minded lay observer might reasonably apprehend that the primary judge had formed adverse opinions of Mr Bullmore's legal representatives which might mean that his Honour would decide the case under the influence of those opinions, rather than on its merits.

Excessive judicial intervention per se

40    The problem is not, however, exclusively analysed as one involving an appearance of pre-judgment: see Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [18] (Basten JA, Ward JA and Emmett AJA agreeing). Excessive judicial intervention can also require a retrial, not because it gives rise to a reasonable apprehension of bias, but because the aggrieved party was not given a reasonable opportunity to put its case: see Ellis v The Queen [2015] NSWCCA 262 at [65] (Bathurst CJ, RA Hulme and Garling JJ). It is thus an aspect of what is sometimes called the 'hearing rule' of procedural fairness, as distinct from the 'bias rule'.

41    In that situation, the test is different: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [11]. It is simply whether the judge's comments have created a real danger that the hearing was unfair: see Galea at 281(1). However, and as reflected in the principles from Galea set out below, the matters relevant to the necessary evaluation as to each of the two bases can overlap: see Gambaro at [22].

42    Mr Bullmore's first ground of appeal suggests that in this case, they did overlap. As well as alleging bias, the ground says that the primary judge denied Mr Guo 'the right to put forward completed argument'. As a self-represented litigant Mr Bullmore should not be held to any rigid distinction between that complaint and a complaint of apprehended bias, strictly so called, and indeed the Minister's submissions addressed the appeal from both perspectives. We will do the same.

43    That being so, the following guidelines from Galea at 281 (citations removed) have been quoted in numerous subsequent cases (e.g. George v Fletcher (Trustee) [2012] FCAFC 148 at [140]; Gambaro at [23]; and Nguyen at [164] (Ward JA)):

1.    The test to be applied is whether the excessive judicial questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.

2.    A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.

3.    Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and 'into the perils of self-persuasion'.

4.    The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.

5.    It is also relevant to consider the point at which the judicial interventions [complained] of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.

6.    The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements.

Ground 1 - evaluation of the hearing before the primary judge

44    By ground of appeal 1, Mr Bullmore contends that the primary judge was biased against him, by denying the applicant's counsel the right to put forward full argument. We will consider that contention in light of the transcript set out above and the hearing as a whole.

The course of the hearing

45    The following matters are relevant to the evaluation of the conduct of the hearing before the primary judge.

46    The hearing was a final hearing of an application for judicial review based on uncontested facts. No jury or witnesses were involved. It was an opportunity to put oral submissions to the primary judge. In substance, they were the parties' closing submissions.

47    Both parties were represented by counsel. Mr Bullmore's counsel, Mr Guo, is a barrister with particular experience in migration law.

48    The hearing took place by video conference technology. That is relevant because experience shows that hearings conducted by that medium can often appear to involve more interjection than hearings conducted in person. The technology makes it more likely that people will talk across each other. We do not suggest that this alone explains the way the hearing proceeded, but it is relevant.

49    In terms of the course of the hearing itself, we summarise it as follows.

50    It commenced with the usual courtesies, including that the primary judge said that he had read both parties' submissions and found them helpful.

51    The primary judge's question at the beginning of the passage extracted at [13] above was expressly framed as an inquiry about an issue that Mr Guo needed to address. In characterising it as a 'very difficult point' for Mr Guo, his Honour was appropriately notifying counsel of a point that needed to be addressed. He was testing the propositions put under the first ground of review.

52    Mr Guo was permitted to answer the question. Only when he began to turn to another point did the primary judge speak again, to query the correctness of the submission Mr Guo had just made. At this point his Honour made a mild reference to a hypothetical 'competent legal representative of your client', but this was just a way of putting the point that it had been open to Mr Bullmore's representatives in the Tribunal to object to the police incident summaries. Mr Guo had an answer to that and, in a passage from the transcript described but not set out at [14]-[15] above, he was permitted to develop the answer by reference to the Minister's statement of issues, facts and contentions in the Tribunal.

53    Then commenced the long passage set out at [16] above. This started with some evidently robust questioning from the primary judge about whether procedural fairness was denied in the Tribunal because of a lack of notice of which pages of the summaries were going to be relied on. But Mr Guo was undeterred and explained the different way in which the relevant ground of review was put.

54    There ensued a dialogue of question and answer between the primary judge and Mr Guo. His Honour was focussed on the fact that relevant allegations about Mr Bullmore's conduct had been put to him in the Tribunal and he had commented on them, and again on the lack of objection to the police summaries. He framed this as 'the problem' (ts 8). In our view this was nothing more than his Honour putting, albeit robustly, the concerns he had about ground 1, so that Mr Bullmore's counsel could address them.

55    It was at that point that the primary judge said, 'It's the incompetence of the people below … [w]ho were acting on behalf of your client at the time'. This was unfortunate because it resulted in a detour by Mr Guo to defend the conduct of the case by his instructor before the Tribunal. But it was a passing comment by his Honour, which was merely a strong way of putting the point that Mr Bullmore was legally represented before the Tribunal, and his representatives did not object to the police incident summaries. His Honour was careful to attribute the 'incompetence' to those representing Mr Bullmore in the Tribunal. There is no suggestion that he was aware that the same instructing solicitor was acting in the hearing, or that he intended to cast aspersions on those who represented Mr Bullmore in this Court. Shortly after that, his Honour was also careful to say to Mr Guo that 'There's no criticism of you in what I'm putting to you …'.

56    When Mr Guo expressed difficulty with the way the primary judge had described the conduct of the case in the Tribunal, his Honour said that he was 'here to listen to your case and to listen to the way you put the case on behalf of your client'. His Honour again put the difficulty that the police incident summaries had gone in without objection and had been put to Mr Bullmore in evidence, he asked 'Where's the unfairness in that?' (ts 8). In all the circumstances, we do not consider that his Honour's question was rhetorical. He is properly understood as wanting to hear the answer that Mr Guo had to the difficulties he had raised, if there was an answer.

57    Mr Guo acknowledged the primary judge's point, saying, 'I can see why your Honour is putting what you have with the force you have. And so, in that sense, I just want to make these submissions so that my client's position is clear, with respect'. At that point the primary judge said 'You proceed, Mr Guo. There's no criticism of you in what I'm putting to you, I just want to understand what your case is'. There is, with respect, no cause to take this other than at face value, as an expression of what his Honour was trying to achieve with his questioning.

58    Mr Guo then had, and took, an opportunity to put Mr Bullmore's case on the first ground of review again. Again, only when he moved to a different point did the primary judge ask to pause. His Honour sought in a different way to obtain an answer to the point that was troubling him, by asking the open ended question of what Mr Guo said should have taken place in the Tribunal to accord procedural fairness. Mr Guo answered that question, and so was able to put his client's case on the first ground of review in a different way.

59    The primary judge was nevertheless not satisfied by that answer, and returned to the points he had previously raised. There was then a passage of further dialogue between the primary judge and Mr Guo which comes across in the transcript as his Honour putting his concerns forcefully. Mr Guo was able to put his client's position again at the outset of the passage (ts 9-10) but subsequently not as much. However, by that time the discussion had moved to the question of Browne v Dunn (which we address below under ground 4).

60    Then Mr Guo said (ts 11), 'Because that is the context in which there should be a finding, and I'm inviting your Honour to find - but it is clear that your Honour is not going to find …'. His Honour then said immediately, 'I haven't decided anything, Mr Guo, yet … I'm testing your propositions'. Again, the fair-minded observer would take that at face value; there is no reason not to. Then, while his Honour said that Mr Guo should withdraw his previous comment (ts 11), he only did so after Mr Guo had withdrawn it; the need to withdraw it had not been raised by his Honour. And, again, Mr Guo was then able to put and clarify the place of Browne v Dunn in his client's case.

61    Mr Guo was then given another opportunity to develop his client's case on the first ground of review, which he did over the course of what is reproduced at page 12 of the transcript above. Clearly, he had not persuaded his Honour, who said at the end of that passage that 'there's no substance to this claim of a denial of procedural fairness, in circumstances where the legal representatives allowed the statements to be tendered absolutely'.

62    Mr Guo then acknowledged that if he were to try to put the point again, he would only be repeating himself. That indicated an acceptance that he had put all the points he wished to put. For completeness he sought to put the same submissions in relation to the other two police incident summaries. When the primary judge asked again what obligation there was to call the makers of the statements when they had gone before the Tribunal without objection, Mr Guo said that he had made his submissions and that 'again, repetition won't improve what I've already put to your Honour' (ts 13). Again, this was an acknowledgement that he had said all he could usefully say.

63    Mr Guo then turned to his submissions about ground 3, which proceeded in an unremarkable way (see [18] above). This goes against any suggestion that the primary judge had taken an adverse view of Mr Bullmore's legal representatives or the way they were putting his case.

64    At the end of his submissions in chief, Mr Guo submitted that if the primary judge was going to find that his instructor was incompetent, the instructor should have an opportunity to respond (see [19] above). This was clearly a reference to the role of Mr Guo's instructor as counsel for Mr Bullmore before the Tribunal. His Honour did not take that further, and did not make any finding of that kind. This confirms that, considered in the context of the hearing as a whole, his Honour's earlier reference to 'incompetence' was merely a passing one that served to put strongly the point that the omission to object to the police incident summaries in the Tribunal was an obstacle in the way of success on the first ground of review. The reference did not indicate that his Honour had formed an adverse view of the competence of those representing Mr Bullmore before him. His exchanges with Mr Guo, while occasionally robust, were at all times respectful.

65    The primary judge prompted counsel for the Minister to make oral submissions about ground 1, when she had not originally intended to do so (see [20] above). That suggests that, while Mr Guo had not persuaded the primary judge that the ground was made out, his Honour still wished to consider the point further. His Honour also, at the very end of the hearing, gave Mr Guo the opportunity to put any other matters he wished to put.

Evaluation of the hearing

No apprehended bias

66    The summary of the hearing we have just given shows that Mr Bullmore's complaint of apprehended bias is not made out.

67    First, the context is important. This was a final hearing without a jury or witnesses which was solely for the purpose of receiving oral submissions. Those submissions were being put by experienced counsel. Written submissions had already been provided, so it would not have been surprising that the primary judge had formed some preliminary views.

68    Then, in the hearing itself, it is true that the exchanges between the primary judge and Mr Guo were robust at times. It may be that on occasion his Honour was exasperated or took umbrage at the way that a submission was put. But none of that would indicate to a fair-minded observer, apprised in general terms of contemporary trial practice, that his Honour might have been prejudiced against Mr Bullmore's case, or that he might decide it other than on an impartial evaluation of the arguments.

69    Mr Bullmore's submissions in this Court focussed in particular on the part of the transcript in which Mr Guo implied that the primary judge had already decided to dismiss the first ground of review, and then withdrew that suggestion. Mr Bullmore submits that his Honour became focussed on that as a suggestion from counsel that he was biased, and so became distracted from the issues at hand. This led his Honour to interrupt counsel (four times) in a way which, according to Mr Bullmore, any fair thinking person would consider indicated bias and was prejudicial. Mr Bullmore submitted that by this point in the hearing, the primary judge had intimidated Mr Guo and his impartiality had become compromised. It was clear from that point that his Honour was not going to accept anything Mr Guo said. He submitted that, having been prevented from putting any argument, Mr Guo decided not to persevere.

70    We do not accept those submissions. As set out in the analysis above, a fair-minded observer would understand that the primary judge's interventions were designed to test the points Mr Guo was making and to give him an opportunity to elucidate his client's arguments. Further, they had that effect, and provided that opportunity. While his Honour had come to the hearing with concerns about the case under the first ground of review (having read the written submissions), the intensive nature of his questioning showed that he was at pains to try to understand that case.

71    That conclusion is supported by his Honour's express statements at various points that he was there to listen to the case, that he wanted Mr Guo to proceed, and that he was trying to understand the case and was testing Mr Guo's propositions. Statements of this kind are not to be discounted: see Concrete at [114]. As we have indicated, a fair-minded observer would take them at face value as indicating what the primary judge was trying to achieve.

72    To the extent that his Honour moved beyond testing of propositions to express the view that there was no substance to the claim of a denial of procedural fairness, that was at the end of Mr Guo's submissions. It would have been open to his Honour at that point to indicate that the Minister need not respond on the first ground of review. But he did not; to the contrary, he prompted counsel for the Minister to respond to the first ground of review orally. A fair-minded observer would likely conclude from this that his Honour's mind was not closed.

73    In all that context, we consider that Mr Bullmore's submissions exaggerate the significance of the exchange on which he focussed, in which Mr Guo implied that his Honour was not going to find in his client's favour, and then withdrew that suggestion. The fair-minded observer would consider that both before and after that particular exchange, his Honour's mind was open to persuasion.

74    Mr Bullmore suggested in oral submissions that he was the person at the appeal hearing best placed to say what a lay person was likely to make of the hearing before the primary judge, presumably because the members of the Court and opposing counsel were all lawyers and not lay people. Mr Bullmore acknowledged, however, that it could be argued that he was himself biased. But whether that is so or not, the submission is misconceived. The Court determines what the fair-minded lay observer might apprehend as an objective characterisation of the facts that it makes for itself. The subjective views of actual lay persons, biased or not, are not relevant to that task.

75    Mr Bullmore's written submissions also made assertions about Mr Guo's subjective views of the situation, and about things Mr Guo is said to have advised after the hearing. These were unsupported by evidence from Mr Guo. Mr Bullmore also speculated as to why the primary judge may have become 'frustrated', as Mr Bullmore put it. But the subjective views or motivations of counsel or the primary judge cannot have any bearing on whether his Honour's conduct of the hearing gave rise to a reasonable apprehension of bias or other procedural unfairness. That is an objective question which does not require an inquiry into the actual thought processes of the judge: see Webb at 71-72 (Deane J).

76    Mr Bullmore may have thought it necessary to make submissions about the subjective motivations of the primary judge because one of the matters that must be identified in order to establish bias is 'identification of the factor which it is postulated might have led the [decision maker] to have decided the review otherwise than on an independent and impartial evaluation of the merits': CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [21] (Kiefel CJ and Gageler J, dissenting but not on that point). However that is not an invitation to inquire into the subjective state of mind of the decision maker; as their Honours' subsequent analysis makes clear, it is a way of framing an important aspect of the objective question, namely, what circumstances might a fair-minded lay observer think might lead the decision maker to act other than impartially? At least where the allegation is of apprehended bias, it is 'the appearance or non-appearance of independence and impartiality' that matters: CNY17 at [19] and see also at [18]. 'No attempt need be made to inquire into the actual thought processes of the judge or juror': Ebner at [7]. Assertions and speculation about the subjective state of mind of Mr Guo or the primary judge need not be considered further.

77    It will be recalled that the first ground of appeal includes a contention that the primary judge should have recused himself. Mr Bullmore's written submissions repeat that contention. But no application for recusal was made. While his Honour could have recused himself by his own motion, the contention adds nothing to the analysis. Either his Honour's conduct of the hearing gave rise to a reasonable apprehension of bias, or it did not. If it had, his decision would have been set aside. We need not consider whether his Honour should have pre-empted that result by disqualifying himself.

78    It is convenient to mention at this point that the lack of any application for recusal also formed the basis for a submission by the Minister that Mr Bullmore had waived any claim of apprehended bias or other procedural unfairness. Given the conclusions we have reached, it is not necessary to deal with that contention.

No other procedural unfairness

79    The summary we have given also shows that Mr Bullmore has not established that the hearing before the primary judge was procedurally unfair because his counsel was not given a proper opportunity to put his case. As robust as the primary judge's questioning was, it was designed to, and did, get Mr Guo to elucidate his client's case. Mr Guo was given a reasonable opportunity to make his points. When he decided not to take the ground any further, that was after he expressly acknowledged that he had made his submissions, and would only be repeating himself. And when he was given the opportunity to put any additional matters to the primary judge at the end of the hearing, he chose not to do so.

80    At the appeal hearing, Mr Bullmore submitted that 'when someone is constantly interrupting someone, cutting them off, refusing them to complete argument or make and complete submissions, then the average lay-minded person … would conclude that the judge is [not] being impartial and [is] prejudicial and biased, or certainly [giving] the appearance of that' (ts 9). Mr Bullmore appeared to submit that his Honour became exasperated to the point that he lost objectivity. In doing so, Mr Bullmore submitted, his Honour denied Mr Guo the ability to put his complete submissions forward. However, as we have explained, we do not accept the factual premise of these submissions, that Mr Guo was not able to put his submissions about the first ground of review, especially when that is assessed in light of the norms of contemporary trial practice. He was able to do so, and he acknowledged as much. We discern no real danger that the hearing was unfair.

81    Ground of appeal 1 is not upheld.

Grounds 2 and 3 - the implication that Mr Bullmore's solicitor was incompetent

82    It is convenient to deal with grounds 2 and 3 of the appeal together.

83    By ground 2, Mr Bullmore contends that by implying that his solicitor in the Tribunal was incompetent, the primary judge demonstrated bias. Once again, we take that to mean apprehended bias.

84    This ground relies on the primary judge's characterisation of the solicitors who represented Mr Bullmore in the Tribunal as incompetent because they had failed to object to the tender of the police incident summaries. This, Mr Bullmore submits, reflects his Honour's attitude to his legal representatives as a whole. According to Mr Bullmore, the adverse view that his Honour had formed of his legal representatives before the Tribunal led his Honour to start with a biased and pre-determined view of the case.

85    However, as we have explained in the analysis given under ground 1, the primary judge's comment about 'the incompetence of the people below' was merely a passing reference in order to make a point. A fair-minded observer is unlikely to apprehend that his Honour had formed an adverse view of Mr Bullmore's legal representatives. His Honour was at pains to indicate no disrespect to Mr Guo. The very intensity of his engagement with the points that Mr Guo was making indicate that he had formed no dismissive view of the quality of Mr Bullmore's legal representation. Therefore, ground of appeal 2 is not upheld.

86    By ground of appeal 3, Mr Bullmore appears to assert that the primary judge had a responsibility to intervene somehow if he had formed the view that Mr Bullmore's legal representatives were incompetent. He submits that if his Honour did consider them to be incompetent, he should have intervened to ensure that Mr Bullmore had adequate representation. The primary judge's failure to intervene in itself was a denial of procedural fairness.

87    As we have explained, we do not consider that the primary judge's comments indicate that his Honour had formed the view that Mr Bullmore's legal representatives were incompetent. Plainly, he considered that Mr Bullmore was competently represented at the hearing before his Honour.

88    It is not clear whether Mr Bullmore is now contending that his Honour was required to reverse the Tribunal's decision because of the asserted view about incompetence in the Tribunal hearing. If so, then as well as failing to establish the factual basis of that contention, it is also a complete answer to say that before the primary judge, Mr Bullmore (competently represented) made no case to the effect that his representation at the Tribunal was such as to lead to a denial of procedural fairness.

89    Ground of appeal 3 is not upheld.

Ground 4 - the primary judge's treatment of the rule in Browne v Dunn

90    With respect, it is difficult to understand ground of appeal 4. We therefore will not attempt to summarise it, but will only repeat it:

[The primary judge] in summary, focused on Brown v Dunn, as his reasons for judgement, which did not form part of the applicant's case. The judges focus on Brown v Dunn, in a manner as if the applicant was reliant upon the precedent as support of submissions, demonstrates further bias against the applicant's case.

91    It is difficult to understand this because, even if no Browne v Dunn argument had been put to his Honour, Mr Bullmore does not explain how, by dealing with it in his reasons, his Honour fell into error in dismissing the application for judicial review. Mr Bullmore makes no submission that his Honour made any error of law or fact in the course of disposing the point, or that dealing with it when (according to Mr Bullmore) he should not have somehow affected his Honour's ultimate conclusion that the Tribunal did not deny procedural fairness.

92    In any event, Mr Bullmore's written submissions to the primary judge did raise Browne v Dunn. They said that, before the Tribunal, 'the Minister's solicitor made the submission that in effect, the Applicant's denials under oath should be rejected (without putting to the Applicant that they were lies)' and, in a footnote to the proposition in parentheses, said 'The "rule in Browne v Dunn" arises because of procedural fairness, not as a technical rule of evidence'. The Minister's written submissions to the primary judge picked this up as a 'contention that the rule in Browne v Dunn was not observed' and spent nearly two pages responding to it.

93    It was therefore open to his Honour to deal with the point, and he did so at [54]-[60] of the primary judgment, with appropriate brevity. It is not necessary to summarise that passage, as Mr Bullmore points to no error it, and has not articulated how dealing with the point otherwise led the primary judge into error in dismissing the application. We do note, however, that his Honour prefaced his reasoning by saying that 'to the extent the Applicant relied on the rule', that reliance was not adequately supported by authority.

94    To the extent that Mr Bullmore now contends that his Honour focussed excessively on the rule in Browne v Dunn, we do not accept that contention. His Honour spent less than two pages on it in a 37-page judgment. And his Honour's conclusion, at [60], was that 'references to the rule in Browne v Dunn in a matter such as this can involve a mislabelling of matters which should properly be considered under the rubric of the rules relating to procedural fairness'. This conclusion aligns with the position Mr Guo put at the hearing, where he effectively disavowed reliance on Browne v Dunn, other than as 'part of the context in which we say there was a denial of procedural fairness' (ts 11).

95    When asked to clarify this ground of appeal in his oral submissions to this Court, Mr Bullmore said that it was just another example of the primary judge not letting Mr Guo put an argument. For reasons already given, we do not accept that this is what occurred. To the extent that Mr Guo sought to rely on the rule, he was able to, and did, get his submission across.

96    We do not uphold ground of appeal 4.

Ground 5 - the objection Mr Bullmore says he made personally

97    Mr Bullmore also made submissions, reflected in his fifth ground of appeal, that the Tribunal should have entertained an evidentiary objection that he, Mr Bullmore, personally raised at the hearing. That is not, strictly speaking, a ground of appeal from the primary judge's decision. It is a ground of review of the Tribunal's decision that was not raised before the primary judge. Mr Bullmore would need leave to rely on it in this appeal, and he did not seek that leave. He was, in any event, unable to refer to transcript before the Tribunal or other evidence to establish the factual premise of the ground, namely that he did object before the Tribunal to the admission of the police incident summaries. Counsel for the Minister properly took us to a passage in the transcript of the Tribunal hearing in which Mr Bullmore objected to reliance on certain statements taken from children, but those had nothing to do with the grounds of review before the primary judge.

98    Mr Bullmore did also submit that the primary judge had refused to listen to submissions based on the asserted fact that Mr Bullmore, and not his legal representatives, had tried to object in the Tribunal. But there is no hint in the materials that such a submission was ever put to his Honour.

99    Also possibly under the rubric of ground 5, Mr Bullmore submitted that the primary judge erred to the extent that his Honour determined that an 'incompetent' lawyer's failure to object to material made that material admissible. Mr Bullmore appeared to submit that the primary judge wrongly concluded that the police incident summaries, although 'inadmissible', became 'admissible' purely because of default in objection from Mr Bullmore's representatives and because of the absence of any 'ruling' by the Tribunal on Mr Bullmore's objection, said to have been made personally.

100    This submission is misconceived. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c). In conducting its review of the delegate's decision, the Tribunal was acting as an administrative decision maker standing in the shoes of the original decision maker, not as a Court: see Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [14] (Kiefel CJ, Keane and Nettle JJ).

101    As such, the question is not whether the police incident summaries were or were not 'admissible' or whether the Tribunal had made a 'ruling'. Properly understood, in considering the summaries, the Tribunal was simply choosing to take into account factual material before it. The absence of any objection from Mr Bullmore's solicitors, and the absence of any evidence that Mr Bullmore himself objected, simply means that nothing in Mr Bullmore's conduct in the hearing before the Tribunal presented any reason for the Tribunal not to consider that material.

102    The passage from the primary judgment set out at [25] above shows that his Honour did not reach some misconceived view that, in the absence of objection to the summaries, they automatically became 'admissible'. That absence was but one of several factors his Honour took into account in determining that, on the evidence before him as to the particular way in which the hearing before the Tribunal proceeded, procedural fairness was not denied. To analyse the actual conduct of the hearing as a whole in that way was to take the correct approach. No error on the part of his Honour has been demonstrated.

103    Ground 5 is not upheld.

Conclusion

104    None of the grounds of appeal have been made out. The appeal will be dismissed, with costs.

Associate:

Dated:    29 July 2024