FEDERAL COURT OF AUSTRALIA

CPF15 v Minister for Immigration and Border Protection [2018] FCA 1764

ORDERS

THE COURT ORDERS THAT:

1.    To the extent necessary, leave is granted to appeal from orders 2, 3 and 4 made in the Federal Circuit Court of Australia on 9 May 2018.

2.    The appeal be allowed in part.

3.    Order 4 of the Federal Circuit Court of Australia made on 9 May 2018 and orders 1 and 2 of the Federal Circuit Court of Australia made on 17 May 2018 are set aside.

4.    The application to the Federal Circuit Court of Australia be remitted to that Court differently constituted for rehearing and determination according to law.

5.    The costs of the appeal to this Court be paid by the first respondent to the first appellant, as agreed or assessed.

6.    The costs of the proceeding before the Federal Circuit Court of Australia be paid by the first respondent to the first appellant in the agreed amount of $7,328.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The first appellant is a citizen of Nepal. The second appellant is the husband of the first appellant. The third appellant is the daughter of the first appellant and the second appellant. The third appellant daughter was born in Australia in 2011. I will refer to them as the appellants rather than the applicants, which they were before the Federal Circuit Court of Australia.

2    Part of this appeal is from a decision of the Federal Circuit Court of Australia made on 17 May 2018 dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal. On 10 November 2015, the Tribunal affirmed the decision of the delegate of the respondent Minister to refuse to grant the appellants Protection (Class XA) visas.

3    The appellants also appeal, or seek leave to appeal, from three related and contemporaneous interlocutory judgments of the Federal Circuit Court: CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1162; CPF15 & Ors v Minister for Immigration & Anor (No.2) [2018] FCCA 1163; and CPF15 & Ors v Minister for Immigration & Anor (No.3) [2018] FCCA 1164. The relevant orders, made on 9 May 2018, were:

2.    The application for recusal under ground 1 of the application in a case is dismissed.

3.    The oral application for recusal is dismissed.

4.    The application for an adjournment under ground 2 of the application in a case is refused.

Procedural history

4    On 11 December 2013, the appellants applied for protection visas. On 2 May 2014, the delegate refused the applications. On 10 November 2015, the Tribunal affirmed the delegate’s decision.

5    The appellants applied to the Federal Circuit Court on 3 December 2015. The application was dismissed by that Court (Judge Street) on 21 July 2017. On appeal to the Federal Court, the appeal was allowed with costs and the matter was remitted to the Federal Circuit Court by orders made by Flick J on 16 March 2018 on the basis of inadequate reasons and denial of procedural fairness.

The Tribunal

6    The Tribunal in its 10 November 2015 decision found that protection obligations were not owed to any of the appellants.

7    At [22]-[26], the paragraphs at the centre of the appellants’ grounds for judicial review, the Tribunal said:

[22] The Tribunal has had regard to the applicant’s claim at paragraph 9.k that the Maoists will expect that, on her return from Australia, she will have a lot of money, making her and her young daughter, the third named applicant, potential victims of an extortion attempt; and inflict significant harm on her and her child if she could not pay. The Tribunal considers this to be speculative. It is not satisfied that her fear in this regard constitutes a real chance that the applicants will suffer serious or significant harm on the return to Nepal in the reasonably foreseeable future.

[23] The Tribunal has also considered the submission by the representative that the applicant is worried about the wellbeing of her daughter, who was born in Australia and is well acquainted with its culture and values. The applicant submits that the child ‘cannot be deprived of this opportunity’, which the Tribunal presumes to mean the opportunity to live in Australia, because of the ‘disturbing past of her parents’, and that ‘it will be a punishment for the child if she is deprived of this opportunity’. However, the Tribunal is not satisfied that, if she returns to Nepal, the child will suffer serious or significant harm in the reasonably foreseeable future.

[24] The timing of the applicant’s Protection visa application, five years after she and her husband arrived in Australia on a Student visa in 2008 and the failure to secure a Skilled Visa in 2013, further exacerbates the Tribunal’s concerns about the applicant’s credibility. Notwithstanding the applicant’s comment that the reason she applied for a Protection visa was her fear of the Maoists, as discussed with the applicant, it is the Tribunal’s view that she applied for the visa in an effort to secure her child’s future and achieve a migration outcome for her family.

[25] On the basis of the evidence before it, the Tribunal is not satisfied that the applicant will be targeted by the Maoists in Nepal, as claimed; or that there is a real chance that she will suffer serious or significant harm from the Maoists on her return to Nepal in the reasonably foreseeable future. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution in Nepal now, or in the reasonably foreseeable future, arising essentially and significantly for one or more of the five Convention reasons, including political opinion. The Tribunal is also not satisfied that the applicant’s husband or daughter has a well founded fear of harm should they return to Nepal now or in the reasonably foreseeable future.

[26] The Tribunal has also considered the applicant’s claims under the complementary protection provisions of the Act. Having regard to its findings of fact above that it does not accept that the claimed events occurred and, on the basis that the applicant lacks credibility, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.

The Federal Court

8    In his judgment in CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 Flick J, in relation to the first judgment given by Judge Street on 21 July 2017, allowed the appeal and remitted the matter to the Federal Circuit Court for reconsideration in accordance with law. The orders were made on 16 March 2018.

9    Order 3 was that the respondent Minister pay the costs of the appellants, such costs including the preparation of the outline of written submissions filed on 1 November 2017 and 13 December 2017.

10    The grounds of appeal to the Federal Court before Flick J were (as written):

1.    His Honour erred by not finding that the Tribunal made jurisdictional error by taking into account irrelevant considerations.

2.    His Honour erred by not finding that the Tribunal made jurisdictional error by relying on an incorrect interpretation and application of the relevant law.

3.    His Honour erred by not finding that the Tribunal made jurisdictional error by failing to consider relevant considerations while assessing whether the Applicant’s meet the Complementary Criteria.

4.    His Honour’s decision was affected by a reasonable apprehension of bias.

Particulars

a)    His Honour took the matter from the Docket of Judge Barnes, vacated the call-over and listed the matter for hearing on short notice.

b)    His Honour did not publish his judgment made on 21 July 2017.

c)    His Honour override previous procedural orders made by the Court and expedited the proceedings without any valid reason or any application by the Minister to do so.

d)    A reasonable person who was informed of the conduct of the Court in the circumstances above would believe the decision was affected by an apprehension of bias.

5.    The decision of the court below was made in circumstances which denied the Applicant procedural fairness.

Particulars

a)    The Applicant repeats the particulars in 4 above.

b)    The Decision of the Court to expedite the hearing of the matter and override previous decisions of the Court meant that the Applicant did not have sufficient time to prepare for the case and lost their ability to have legal representation.

c)    The appellant was refused an adjournment in circumstances where the hearing was brought forward and was not provided an opportunity to explain the reasons why she needed an adjournment and how long that adjournment would be.

d)    As a result of the bringing forward in the matter, the Appellants lost their solicitor who could not attend the new hearing date.

6.    Further grounds to be provided upon publication of his Honour’s judgment.

11    Justice Flick said, at [9], that the reasons for allowing the appeal turned upon both the orders made to ready the proceeding before the Federal Circuit Court for hearing (and the events that took place on 21 July 2017) and upon the brevity of such reasons as were given by the primary judge. It was the combination of these two factors, Flick J said, which led to the conclusion that the decision appealed from should be set aside. Taken together, his Honour said, there was a disturbing and unanswered inference that the appellants were not afforded a proper opportunity to adequately present for resolution such arguments as may have been available to them and a disturbing inference that such grounds of review as were advanced were more resolved by reference to generic principles of general application rather than by reference to the particular facts presented.

12    Justice Flick found that inadequate reasons had been given by Judge Street. At [19], Flick J said that he expressed no opinion as to whether the decision of the Tribunal should be set aside or whether the primary judge should have dismissed the application for review of that Tribunal decision. Indeed, one of the reasons for expressing reservation as to the conclusion that the appeal should be allowed was the prospect that the decision of the Tribunal and dismissal of the application for review by the Federal Circuit Court may well have been correct given the claims made and the arguments presented.

13    Justice Flick also found, at [21], that any argument as to there being a reasonable apprehension of bias on the part of the primary judge was abandoned. However, Flick J concluded at [27] that Judge Street’s refusal of the adjournment applied for by the present first appellant effectively denied the appellants an opportunity to be heard. Justice Flick then went on to consider the separate question of whether the refusal of the adjournment was an erroneous exercise of discretion.

14    At [30], Flick J concluded that appellable error had been exposed in this respect by reason of the combination of the following factors:

•    the fact that the proceeding was initially only listed for callover on 24 July 2017 and that, had that callover then taken place, a date for final hearing would then have been set for some time thereafter;

•    the fact that the date for the callover was unilaterally vacated in Chambers by the primary Judge and without notice to the parties; and

•    the fact that no inquiry was made of the [first appellant] as to when she could expect to be in funds to afford legal representation or the extent of any adjournment if one was to be granted. No consideration was apparently given to whether even a short adjournment could accommodate both the objective of expeditious resolution of cases and the interests of the now-Appellants in securing legal representation. Detailed written submissions, it may be noted, had previously been prepared on behalf of the now-Appellants by legal representatives and provided to the Administrative Appeals Tribunal in October 2015. The statements made to the primary Judge by the [first appellant] as to her desire to retain legal representation was, accordingly, not necessarily a mere statement made to secure extra time but rather a statement perhaps founded upon the prior steps taken by the Appellants in order to have their case presented properly.

…

•    the exchange at the very commencement of the hearing, namely the reference by the primary Judge to the [first appellant] needing an interpreter “even though you came over on a student visa in 2008” may be seen as having put the [first appellant] “on the back foot” right from the outset;

•    the fact that the [first appellant] was experiencing obvious difficulties in both understanding and making any meaningful submissions in respect to her application which had been listed for final hearing; and

•    the fact that the [first appellant] made reference to securing the services of a barrister “who knows about laws, but then my hearing was brought forward than the required date, so I didn’t get that opportunity”.

Flick J continued, at [30], as follows:

It is also disturbing that the reasons provided by the primary Judge for refusing the adjournment, when ultimately published:

•    make no reference to the orders made in Chambers or the circumstances in which the callover date was vacated and the matter listed for hearing. A more complete account of the background facts of relevance to the refusal of the adjournment may have been otherwise expected; and

•    summarily conclude that there is a lack of “utility” in granting an adjournment without any real analysis of the Grounds of review being advanced before that Court and the prospect that the Grounds, properly argued, should an adjournment have been granted and legal representation secured, may ultimately be seen to have merit.

(italics in original.)

The Federal Circuit Court

15    On 16 April 2018, by order of Judge Street made in Chambers, the matter was listed for hearing on 9 May 2018 before Judge Street, the judge who originally heard the matter in July 2017. On 30 April 2018, an application in a case was filed on behalf of the appellants seeking orders that the primary judge “be disqualified on the grounds of reasonable apprehension of bias” and further or in the alternative “that the hearing date listed on 9 May 2018 be vacated” on the grounds listed in an affidavit affirmed by the first appellant on 27 April 2018. That application, and a further oral recusal application, was dismissed at the hearing of the matter on 9 May 2018. The substantive application was also dismissed by the Federal Circuit Court on 17 May 2018.

16    The affidavit in support of the application in a case was in the following terms (as written):

1.    I am the First Applicant.

2.    On 16 March 2018 my Appeal against the orders of this Honourable Court dated 21 July 2017 was allowed in proceedings NSD1355 of 2017 (‘the Federal Court proceedings’).

3.    I incurred costs in the sum of $18,000 in the Federal Court proceedings and I spent all of my family’s saving to retain solicitors and a barrister for the Federal Court hearing.

4.    I was awarded costs in the Federal Court. I am advised by my solicitor that costs were resolved and then the First Respondent later disputed part of the settlement sum. I am yet to receive any sum from the First Respondent in respect of the costs order.

5.    I currently have no savings to allow me to retain a lawyer or a barrister to appear for me in a hearing in the Federal Circuit Court. I am yet to pay all fees outstanding to my solicitor and barrister for the Federal Court proceedings.

6.    I only have limited income as a causal employee and I receive no government benefits. I have found it hard to find full time employment because of my bridging visa status. My husband and I earn about $1100 combined a week after tax. We have to pay for our child school which is about $5200 per year, all medical expenses, rent and food which amounts to about $1000 per week. Due to our visa status as a Temporary Bridging visa holder my husband and I have no assistance from the Australian government and we never have. We have always paid for all our medical costs, and schooling for our child in full.

7.    His Honour Judge Street has already made statements and findings in my case. I fear that he may not be able to make a fair and impartial decision in my case.

8.    I would need three to four months to resolve the costs dispute with the First Respondent and save money to be able to have representation to put material from the Tribunal and evidence before the Federal Circuit Court so that my case could be presented to this Honourable Court.

9.    I will seek orders from this Honourable Court for leave to file evidence being the transcript from the Tribunal hearing below once I have the funds to have that evidence prepared. I may seek to amend my grounds based on the transcripts if I am so advised by a Counsel once I have funds to seek that advice.

10.    I humbly ask the Court to make the orders in my Application in case on behalf of all the Applicants.

17    There was no objection to or cross-examination on that affidavit in the Federal Circuit Court. There was a further affidavit read, being an affidavit by a solicitor for the respondent Minister sworn on 8 May 2018 and filed on 9 May 2018 deposing that a cheque in the sum of $8,175 had been sent “in full and final satisfaction of your client’s costs” under letter dated 1 May 2018 and received by the appellants’ solicitor on 3 May 2018.

18    The grounds of the judicial review application as they stood before the Federal Circuit Court in May 2018 were as follows (as written):

1.    The Second Respondent took into account irrelevant considerations at paragraph 24 of the decision.

Particulars

a)    The Second Respondent states that the Applicant “ ...applied for the visa in an effort to secure her child’s future and achieve a migration outcome for her family”

b)    The Second Respondent took a negative inference from this. However all genuine Refugees and persons desperately needing protection from persecution and harm have the goal of securing the future of their children and achieving a migration outcome for their families.

2.    The Second Respondent made jurisdictional error as it relied on an incorrect interpretation and application of the relevant law.

Particulars

a)    The Second Respondent states at paragraph 25 that it is “...not satisfied that the applicant has a well-founded fear of persecution in Nepal, now or in the reasonably foreseeable future, arising essentially and significantly for one or more of the five Convention reasons...”

b)    The requirement that the Second Respondent assess the Applicant under Section 36 (2) (a) under the definition of Refugee does not require an analysis of whether the harm is ‘now or in the reasonably foreseeable future.

c)    The Second Respondent has mixed the test for 36 (2) (a) and 36 (2) (aa) by assessing whether the Applicant meets the Refugee Criteria ‘now, or in the reasonably foreseeable future’.

3.    The Second Respondent failed to consider relevant considerations while assessing whether the Applicant’s meet the Complimentary Criteria, namely the harm that will be faced by the Third Applicant child, who was born in Australia, if they were to return to Nepal.

The appeal

19    The notice of appeal to this Court takes the following form (as written):

The Appellants appeals from the whole of the judgment (No.4) of Judge Street of the Federal Circuit Court of Australia given on 17 May 2018 at Sydney.

Further, the Appellants appeal, or alternatively seek leave to appeal, from the following judgments delivered on 9 May 2018:

1.    CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1162 (CPF15 1162);

2.    CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1163 (CPF15 1163); and

3.    CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1164 (CPF15 1164)

Grounds of appeal

1.    His Honour erred in relation to Ground 1 below concerning paragraph [24] of the reasons of the Second Respondent.

Particulars

a)    His Honour characterised criticism of the negative construction and conclusion by the Second Respondent that the First Appellant was applying for a protection visa in order to secure her child’s future and “achieve a migration outcome for her family” as being reading the reasons of the Second Respondent with a keen eye for error.

b)    The mother, being the First Appellant, was raising matters concerning the safety of her young child and it was therefore inherent in her case that she was seeking a migration outcome for her family and this should not have been regarded as a negative matter which was used in relation to her own credibility as well as side stepping the issues about the child born in Australia in 2011, whose claims did not depend upon the credibility of the First Appellant.

c)    His Honour misunderstood or misconstrued the submission concerning paragraph 9 (k) of the reasons of the Second Respondent. That paragraph relates to a claim made by the Appellant concerning the vulnerability of returnees with small children. That was a claim not dependent upon the credibility of the First Appellant and which was not dealt with by the Second Respondent.

2.    His Honour erred at paragraphs [43]-[47] of his judgment by failing to have proper regard to the second sentence of paragraph 22 of its reasons where the Second Respondent conflated subjective fear with whether that subjective fear itself constituted a real chance that the Appellant’s would be subjected to harm in Nepal because they were returnees with a small child, and therefore highly vulnerable to extortion demands.

3.    His Honour erred at paragraph 47 of his reasons by stating that adverse credibility findings subsume the claim in paragraph 9 (k) when, by its very nature, that claim relating to the Third Appellant born in 2011 could not be determined by reference to the credibility or otherwise of the First Appellant.

4.    His Honour erred in relation to Ground 3 below, where his Honour failed to appreciate or deal with the submission that at paragraph 26 the issue of complimentary protection could not be determined in relation to the Third Appellant exclusively by reference to past events and to the credibility of the First Appellant.

5.    In relation to the Judgment identified as CPF15 1162, his Honour erred by refusing to recuse himself or disqualify himself on the grounds of reasonable apprehension of bias.

6.    In relation to the Judgment identified as CPF15 1163, his Honour erred in the judgment CPF15 1162, in descending into the arena to justify his Honour’s prior conduct which his Honour felt was explicitly or implicitly criticised.

Particulars

a)    In CPF15 1162, his Honour at paragraph [11] attempted to justify the conduct in 2017 in vacating the call over and fixing the matter for early hearing.

b)    At paragraph 8, in CPF15 1162, his Honour gratuitously referred to the Protection Visa application in support of justifying his Honour’s conduct in the previous hearing before him on 21 July 2017 in raising at the very outset the First Appellant’s need for an interpreter. In fact, the criticism of his Honour Flick J in the Federal Court of Australia [30] was not based so much in the inherent racism of the exchange as the fact that it put the First Applicant at the back foot right from the outset and obscured the fact that she was experiencing difficulties in understanding and making meaningful submissions.

7.    Further, his Honour erred in CPF15 1163 at [3] by characterising the question criticised at [30] in the judgment of Flick J as being merely a question by Judge Street in July 2017, about the need for an interpreter. The First Applicant attended the hearing before Judge Street on 21 July 2017 with an interpreter and as found by Flick J, the question by his Honour Judge Street which was basically the first question he asked, was inappropriate and put the First Applicant on the back foot from the outset.

8.    In relation to CPF15 1164, his Honour erred by failing to grant an adjournment and further by making observations in relation to each of the grounds which further exacerbated the perception of reasonable apprehension of bias, even to the extend in [18] of gratuitously referring to legal representatives not being entitled to advance grounds without reasonable prospects of success.

9.    His Honour erred in CPF15 1164 by failing to deal with any reason as to why the matter had to proceed forthwith in circumstances where the Appellants had reasonably been forced to expand considerable funds in successfully prosecuting their Federal Court Appeal and were waiting for resolution of a cost dispute with the First Respondent in order to obtain funds.

The interlocutory judgments

20    In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Kirby and Crennan JJ said at [117] (footnotes excluded):

An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike (sic) at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias.

Gummow ACJ took the same view at [2]-[3].

21    I will therefore deal with the apprehended bias matters first. Similarly, if the adjournment application was wrongly refused then it will not be appropriate to consider the substantive grounds.

22    It seems likely that the appellants should have, in their notice of appeal, identified as subject to the appeal or an application for leave to appeal the orders made in the three interlocutory judgments rather than merely listing the judgments: see Barakat v Goritsas [2012] NSWCA 8 at [16], but nothing turns on that. Counsel for the Minister expressly took no point in this respect and said the Minister had no objection to the grant of leave to appeal if that were necessary.

23    The applicants were represented by counsel and solicitors, as they had been before the Federal Court but not before the Federal Circuit Court in July 2017.

The first interlocutory judgment

24    In the first judgment Judge Street dismissed the application for recusal. According to the reasons for judgment, and there is no other evidence, the first conduct identified by counsel as a basis for the application was the conduct of the hearing at first instance, Judge Street asking whether the applicant required an interpreter, and the refusal of an adjournment. The second conduct was the order made on 16 April 2018 fixing the matter for hearing on 9 May 2018.

25    The reasons state, at [5], that Flick J gave consideration to the conduct of the hearing by the Federal Circuit Court but no order was made by the Federal Court that the matter be remitted to a differently constituted Federal Circuit Court. Before me, counsel for the appellants accepted that the appellants did not before Flick J seek an order that the matter be remitted to the Federal Circuit Court differently constituted.

26    At [7], Judge Street said that a finding of appellable error was not of itself, conduct by reason of which a fair-minded lay observer might reasonably apprehend that he, Judge Street, might not bring an independent and impartial mind to the determination of the matter on its merits (reasonable apprehension of bias) if it was remitted to the Federal Circuit Court for rehearing.

27    Judge Street said:

[8]    Mr Young of counsel in the present case took the Court first to the criticism that was raised at the commencement of the reasons of the learned Flick J as to the question asked of the applicant at the hearing, whether she needed an interpreter, given that she came to Australia in 2008 on a student visa. The applicant responded yes, and an interpreter was sworn. The application for a protection visa in question 12 at page 2 of the Court Book, of which a fair-minded lay observer would be aware, identified a question: “which languages do you speak, read or write (including English)?[”] In response to the language Nepalese, the applicant ticked speak, read and write and in response to the language English the word “(limited)” was inserted and, speak, read and write was ticked.

28    Judge Street then said, at [9], that a fair-minded lay observer would be aware that the first appellant had filed an affidavit in English which was not the subject of any identification of the use of an interpreter. In these circumstances, his conduct in asking whether the first appellant required an interpreter was not conduct which gave rise to a reasonable apprehension of bias.

29    Counsel took Judge Street to the reasons of Flick J and to the conclusion that the refusal of the adjournment effectively denied the appellants an opportunity to be heard. In that regard, Judge Street said that Flick J identified the reasons that had been provided for the refusal of the adjournment, and found those reasons to be inaccurate, and made reference to what occurred at the commencement of the hearing, and to the proposition that the first appellant was having difficulties understanding and making meaningful submissions with respect to her application, and that she wanted to secure the services of a barrister.

30    Judge Street then referred to Flick J also taking into account the absence of reference in that regard to the circumstances in which orders were made in chambers vacating the callover and fixing the matter for hearing, and the inadequacy of the reasons in relation to the expressed want of utility in the granting of an adjournment in the reasons of the Federal Circuit Court. Judge Street continued as follows at [11]:

A fair-minded lay observer reasonably informed, would be aware that the practices in relation to the listing of matters in this Court differs between judges. A fair-minded lay observer would be aware that some judges in the Court rather than list out years into the future, place matters into callovers with the intention of either dealing with the matter earlier or dealing with the matter, if needs be, at the callover. A fixing of the matter for a callover would not be regarded by the fair-minded lay observer as a matter that entrenches an entitlement to an applicant to have a callover date. The making of orders in chambers vacating the callover date and fixing the matter for hearing is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits.

31    At [13], Judge Street again said that a finding of appellable error was not of itself conduct which gave rise to a reasonable apprehension of bias.

32    At [14], Judge Street referred to counsel’s making reference to the observations by Flick J in relation to the listing of the matter for hearing, the circumstances in which the matter was unilaterally vacated, that no enquiry was made to the first appellant as to her representation at the time of the fixing of the matter for hearing, as well as the absence of an explanation in relation to that history. Judge Street said that the absence of an explanation in relation to the history involved in fixing the matter for a callover was not conduct which gave rise to a reasonable apprehension of bias. Judge Street referred again, at [15], to there being liberty to apply.

33    At [16], Judge Street said that the failure of his reasons to address the arguments put by the appellants and the factual basis upon which those arguments were to be resolved and the reasons for rejecting those arguments in the manner identified by Flick J was not conduct which gave rise to a reasonable apprehension of bias.

34    For similar reasons, at [17], Judge Street said, in relation to the finding by Flick J that his failure to provide adequate reasons in support of the adverse determination, the existence of appellable error in relation to that adverse determination of grounds 1, 2 and 3 was not of itself, conduct which gave rise to a reasonable apprehension of bias.

35    Judge Street said that the issue involving whether jurisdictional error was made out was in substance a question of law and reflected either an excess of statutory power or a denial of procedural fairness. The adverse finding in relation to the grounds was not an adverse finding in relation to the credit of the appellants by him, but was rather a determination of the argument as the Court had then addressed it.

36    At [19], Judge Street said that the fact that Flick J held that he did not adequately address the arguments was not conduct which gave rise to a reasonable apprehension of bias.

37    Next, at [22], Judge Street rejected the apprehended bias claim founded on fixing the matter for hearing. Judge Street said that at the time the matter was fixed for hearing, more than 28 days had expired since the delivery of the reasons of Flick J on 16 March 2018. The Federal Circuit Court had a duty to attend to orders made by a superior Court, and the fixing of the matter for hearing by the order made on 16 April 2018 was not conduct which gave rise to a reasonable apprehension of bias. Further, an independent lay observer being reasonably informed would be aware that there was in place liberty to apply in respect of the order that had been made by earlier orders both of the Registrars and of the Court which could be exercised in respect of the order made.

38    In written submissions to this Court, counsel for the appellants submitted that [9] of Judge Street’s first interlocutory judgment, suggested as a matter of which a fair-minded observer would have awareness, Judge Street effectively responded, himself, to criticism of Flick J at [30] concerning Judge Street’s conduct which might be seen as putting the first appellant “on the back foot” from the outset by making adverse comment about her need for an interpreter. Quite startlingly, counsel for the appellants submitted, Judge Street at [8] referred to a box ticked by the first appellant where the first appellant had answered that she spoke, read or wrote English (limited) as justification for the course his Honour took which had been criticised by Flick J. It was all the more startling, counsel submitted, because it had not been the subject of any submissions included by the first respondent. It was certainly not something which could possibly be reasonably suggested as knowledge of a fair-minded observer. It was plainly Judge Street’s own research to justify prior conduct which had been criticised. Similarly, the submission continued, at [11] Judge Street attempted to justify his earlier conduct in vacating the callover and fixing the matter for hearing.

39    However, more broadly, it was submitted on behalf of the appellants that Judge Street should have recused himself given the tenor and substance of Flick J’s judgment. Judge Street at [4] emphasised that no order was made by Flick J that the Federal Circuit Court be differently constituted. It was however implicit, the submission went, in the criticisms of Flick J at [30] of his judgment (coupled with the dismissal by Judge Street of the grounds advanced by reference to “generic principles of general application rather than by reference to the particular facts presented” and the absence of reasons) that it was not appropriate for Judge Street to hear the case at all.

40    Further, Judge Street had immediately after Flick J’s decision both assigned the case to himself, it was submitted, and fixed it at very short notice without giving the appellants any opportunity to be heard.

41    The grounds of the application remained the same as Judge Street had, in four peremptory paragraphs, summarily dismissed in language which, it was submitted, appeared to go beyond any connection with the grounds or go close to justifying the decision on the facts.

42    A fair-minded lay observer might reasonably apprehend, the submission went, that Judge Street might not bring an impartial and unprejudiced mind to the resolution of those very same questions which Judge Street again gave it to himself to decide.

43    The respondent Minister submitted that Judge Street considered the context in which the conduct occurred from the perspective of the reasonably informed fair-minded lay observer. Judge Street concluded that such an observer might not reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits: at [8]-[19]. Judge Street found that the fixing of the matter for hearing promptly, almost a month after the making of orders of the Federal Court and almost two months after remittal, was not conduct which gave rise to a reasonable apprehension of bias: at [23]-[24].

44    The Minister submitted that the appellants’ grounds five to seven, which sought the recusal of Judge Street on the basis of apprehended bias, mischaracterised his Honour’s reasoning. Justice Flick did not find that the exchange regarding the interpreter was capable of amounting to a reasonable apprehension of bias on the part of Judge Street. Any claim that the conduct of Judge Street was collectively capable of amounting to this was expressly abandoned by the appellants in the Federal Court proceedings: see [21] of the judgment of Flick J. Far from trying to justify the conduct that was impugned in the judgment of Flick J, Judge Street accepted that he had committed appellable error in the manner articulated. He did so expressly at [19]. However, it was submitted, Judge Street considered that appellable error did not equate to a mind that was closed to persuasion. This was undoubtedly correct. Were this not the case, it was submitted, matters remitted for inadequate reasons would always be allocated to a different judge. That was not the practice. There had been cases in which this Court had determined that certain matters ought to be determined by a different judge and made orders accordingly. However, no such order was made in the present case.

Consideration

45    As I have said, at the hearing before Flick J the present appellants did not ask for an order that the matter be remitted to the Federal Circuit Court differently constituted. Also, the corresponding ground, that the judgment of Judge Street should be set aside on the basis of a reasonable apprehension of bias, was deleted from the notice of appeal. I do not suggest that this is determinative, by any means.

46    In my opinion what was required to occur, and did occur, in the Federal Circuit Court on remitter was that the reasons of Flick J for finding that there had been a denial of procedural fairness were evaluated for a different purpose, the purpose being to consider whether or not a reasonable apprehension of bias on the part of Judge Street was established by reference to whether a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter. In my opinion, this was the test that Judge Street applied and did so by reference to the informed observer and what that observer is assumed to know. The fair-minded lay observer is assumed to know the actual circumstances of the case: Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 87.

47    I do not accept the appellants’ submission that Judge Street erred in not disqualifying himself on the basis of reasonable apprehension of bias “given the tenor and substance of Flick J’s judgment” or on the basis of the interpreter issue. In so saying I accept that the appellants relied on a combination of factors, including the manner in which Judge Street had disposed of the judicial review application on 21 July 2017, which was criticised by Flick J. It is also to be recalled that the ground of disqualification is not made out on the basis that a judicial officer will decide the case adversely to one party: it requires a reasonable apprehension that the judicial officer might not decide the case impartially or without prejudice: Re JRL; ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 per Mason J; see also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36].

48    Although the matters relied on by the appellants may go to establishing procedural unfairness generally, I do not regard them as establishing a reasonable apprehension of bias.

49    The appellants relied on British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [33] per French CJ, to the effect that it was not enough to show that those in the know would not apprehend any bias. There, however, his Honour was considering the purpose of the “legally constructed, fair-minded lay observer”. Because the reasonable apprehension of bias goes to confidence in the courts on the part of litigants and the public, the judgment is to be made on a subset of the available information. The matter is however to be considered in the context of ordinary judicial practice: see French CJ at [46]. And at [47], his Honour agreed with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a judgment.

50    In my opinion reasonable apprehension of bias by reason of prejudgment has not been “firmly established”: Re JRL at 352.

The second interlocutory judgment

51    I turn then to the second interlocutory judgment. This was a judgment on an oral application for Judge Street to recuse himself based on two matters arising from the reasons for judgment I have just considered.

52    The first matter identified by counsel for the appellants before the Federal Circuit Court was the reference by Judge Street to the Court Book that was put into evidence in support of the application then before the Court. Counsel was concerned that the reference to the question about speaking English had not been correctly summarised by the Court. Judge Street said that, contrary to counsel’s submission, he, Judge Street, correctly identified the reference to limited English at the time he gave his reasons. Further, the reference to question 12 at page two of the Court Book was not conduct which gave rise to a reasonable apprehension of bias. Counsel also took the Federal Circuit Court back to the reference in Flick J’s reasons to the timing of the question about the need for an interpreter. As a fair-minded lay observer would be aware, Judge Street said, the need for an interpreter was a matter that had to be dealt with, at the commencement of the hearing. In those circumstances, the timing was not conduct which gave rise to a reasonable apprehension of bias.

53    The second matter which counsel relied on was Judge Street addressing the criticisms in relation to an argument about procedural fairness that was not identified in the grounds of review. Judge Street identified what had occurred at the commencement of the hearing of which a fair-minded lay observer being reasonably informed would be aware, where he had explained that he would consider whether there was a jurisdictional error and sought to explain that jurisdictional error. Judge Street addressed both aspects of the potential jurisdictional error. Judge Street said that was not conduct which gave rise to a reasonable apprehension of bias.

54    Counsel for the appellants submitted that Judge Street had, in respect of those two matters, sought to justify the conduct in circumstances that might cause a fair-minded lay observer to have an apprehension that he might not bring an independent and impartial mind to the determination of the matter on its merits. Counsel argued that the justification was conduct that gave rise to reasonable apprehension of bias. Judge Street said he provided reasons in support of the determination of the action. Those reasons were not justification. Those reasons were reasons why he, Judge Street, determined the application that was advanced. He maintained an open mind reasonably capable of persuasion as to the merits in relation to the appellants’ case which involved questions of law.

55    No separate written submissions were made to this Court in respect of the refusal of this oral application that the judge disqualify himself.

Consideration

56    In my opinion the circumstances of this application, the grounds for it and the reasons of Judge Street refusing it take the matter no further. Again, reasonable apprehension of bias by reason of prejudgment has not been “firmly established”: Re JRL at 352.

The third interlocutory judgment

57    I turn then to the third interlocutory judgment being the dismissal on 9 May 2018 of the application for an adjournment.

58    I have already set out, at [16] above, the terms of the affidavit on which the appellants relied for their adjournment application. I have also already noted that before Judge Street there was no objection to or cross-examination on that affidavit.

59    The reasons of Judge Street for refusing the application were as follows.

60    First, the affidavit of the first appellant did not identify any net saving that she and her husband were able to make on the face of the evidence before the Court. Judge Street said there was no evidence to support the proposition that the first appellant would be able to save funds in the period of time requested (three to four months) to be able to meet future costs in respect of lawyers. The future costs were not identified in a quantified way and the matters referred to in respect of the hearing in the costs dispute related to the past costs.

61    Judge Street then referred to the first appellant’s desire to put on evidence in relation to the transcript of the proceedings once she had funds. Judge Street said that none of the grounds in the application identified any basis upon which it could be said that the transcript was relevant to the grounds currently identified. Further, it was apparent from the orders made on 11 February 2016 that the appellants were given an opportunity to file a transcript together with affidavit evidence on or before 17 March 2016.

62    Judge Street was not satisfied on the basis of the evidence in the first appellant’s affidavit that she was likely to be able to obtain funds to meet future representation and/or to pay the cost of the transcript in circumstances where the proceedings were commenced on 3 December 2015 and no such step had been taken by the appellants to date. The identification of the desire to put on the transcript without any identified relevant ground to which it could go was of further concern, Judge Street said.

63    Judge Street said that the Court was entitled to take into account in the adjournment application the merits of the appellants’ substantive application. He concluded by reference to each ground that it did not reflect a strong ground or one which had a strong prospect of success.

64    Counsel for the appellants indicated to Judge Street that the dispute in relation to legal costs was a dispute that should be taken into account in determining whether or not to grant an adjournment. In that regard, Judge Street said, it appeared that a payment had been made by the first respondent Minister to the appellants’ solicitors reflecting part of the costs incurred in the hearing before Flick J and the subject of his order 3: see [9] above. It was apparent that that payment had been accepted, Judge Street said, in partial satisfaction of the costs order on the correspondence that had been tendered before the Court. Counsel for the appellants said that further funds might be obtained and maintained that he was not in a position that day to address the substantive merits of the application.

65    Counsel for the appellants submitted to Judge Street that the long history of the matter and the bringing forward of the matter for hearing were too quick and that an adjournment should be granted. Judge Street said that the order fixing the matter for hearing was made almost a month after the decision of Flick J. The fixing of the matter for hearing reflected almost a further month.

66    Judge Street said that the proceedings were commenced on 3 December 2015 and the Court had summarised the history in relation to the orders of the Court which orders included an order for liberty to apply (to the extent it is relevant I note that the order by Judge Street made on 16 April 2018 listing the matter for final hearing did not contain an express provision for liberty to apply: compare [16] of the judgment presently under consideration).

67    Judge Street said that he was not satisfied that the costs dispute of itself justified an adjournment. Further, he said, those costs were past costs. Judge Street said that no quantification in respect of future costs had been provided and no reasonable basis upon which the first appellant could earn income to pay those future costs had been identified. Further, the first appellant had had ample time and opportunity to present other or different grounds in support of the desire to put on the transcript. Judge Street said that, whilst it was the case, as counsel for the appellants correctly identified, that lawyers were not required to provide their services for free, the originating application was an application filed by the appellants.

68    Judge Street concluded his substantive reasoning as follows:

There are certain standards under the Migration Act 1958 (Cth) that reflect the advancing of grounds by legal representatives. Legal representatives are not entitled to advance a ground that has no reasonable prospect of success. To do so engages a potential cost consequence. These proceedings were not commenced by lawyers. Whilst the applicants have had the benefit of legal representation in relation to the appeal, the absence of pro bono services in relation to the preparation of an alleged ground of error is not a matter that assists the applicant in justifying why an adjournment should be granted in respect of these proceedings having been fixed for hearing. I am not satisfied in the circumstances that the interests of the administration of justice warrant an adjournment of the proceedings.

69    Before this Court, the appellants submitted the unchallenged evidence was that the appellants who had funded their Federal Court challenge were in dispute with the respondent Minister and did not have the funds to afford representation for the (remitted) hearing. It was submitted that Judge Street gave no reasons why the particular matter had to be heard two months after the orders of the Federal Court. The appellants were not able to accept a cheque sent on 1 May 2018 because it was sent on the basis that it was “in full and final satisfaction of your client’s costs” which was not accepted.

70    The appellants submitted that while the adjournment refusal was a discretionary judgement, it was a wholly unreasonable exercise of discretion. No case management principles could possibly have warranted the haste with which the matter was brought on without consultation or the refusal to even consider the financial effect of having to run and fund a Federal Court appeal.

71    The respondent Minister submitted the costs dispute was considered at [2] and [14] of this third interlocutory judgment of Judge Street. It was submitted that Judge Street accepted the Minister’s evidence that a payment had been made. Nevertheless, I note, I was told by the parties before me that it was common ground before Judge Street that the cheque had not been banked. Contrary to the appellants’ submissions, the Minister submitted, Judge Street did consider (at [2]) that costs had been incurred in running the previous appeal. The Court’s concern, though, was that there was no satisfactory evidence that the appellants’ financial position would sufficiently change in the interim: [3]. The Minister submitted there was no additional evidence before the primary judge from the appellants as to whether the appellants’ lawyers were willing to act pro bono or on spec or subject to delayed payment. It was difficult for the Federal Circuit Court to determine whether the adjournment would enable the appellants to obtain legal representation.

72    The Minister submitted it was open to Judge Street to have regard to the merits, at least in an impressionistic sense, of the grounds proposed to be advanced. The Court had a broad discretion in deciding whether or not to adjourn a hearing. The primary consideration was the interests of the administration of justice, taking into account principles of case management and wastage of public resources: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175; Singh v Minister for Immigration and Border Protection [2014] FCA 937 at [28]-[29]; ADY17 v Minister for Immigration & Anor [2018] FCCA 2977 at [13]. Within this context, it was submitted, prospects of success were a relevant and appropriate consideration: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [20]; SZRBN v Minister for Immigration and Citizenship [2012] FCA 984 at [16]. As was found by Judge Street, a period of nearly two months was not self-evidently too brief a time for a matter to come to hearing in circumstances where the proceedings were first commenced in 2015. The appellants’ counsel was present at the hearing. Both he and his instructors had acted for the appellants in the appeal proceedings, at least since late 2017.

73    The Minister submitted that the decision to refuse the adjournment application was open to Judge Street for the reasons that he gave. No appellable error was demonstrated.

Consideration

74    In my opinion, the judge’s discretionary judgment miscarried and the appellants were denied a reasonable opportunity to present their case.

75    As the Full Court said in Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 at [49], it is always necessary to assess whether a process meets the necessary standards of fairness by examining the particular circumstances in which that process occurs, including (but not limited to) the statutory setting, the characteristics of the parties involved, what is at stake for them, the nature of the decision to be made, and steps already taken in the process.

76    On any view, the appellants were temporarily impecunious by reason of the fact that they had spent all their limited resources on running a successful appeal at what was for them very substantial expense ($18,000) and had not at the date of the first appellant’s affidavit received any of the amount of the costs awarded in their favour. As I have said, it was common ground that the proffered cheque of 1 May 2018 had not been banked. In any event, it was only a few days before the adjournment application was heard and determined that the appellants had been offered some of those costs. What part of the $8,175 or other amount was in dispute was not clear. In those circumstances the appellants sought and identified a finite amount of time, three to four months, to resolve the costs dispute and save money to retain lawyers to run the case. The appellants adverted to the prospect of an application to amend once they had the money to retain lawyers. Counsel who was there on the day submitted he was not in a position that day to address the substantive merits of the application.

77    In my opinion, the primary judge did not take into account that the costs ordered had not come into the hands of the appellants in the period immediately preceding 9 May 2018 and that a further sum was in prospect. In those circumstances it was by no means significant that the affidavit of the first appellant did not identify any net saving that she and her husband were able to make on the face of the evidence before the Court or that there was no evidence that the first appellant would be able to save funds in that period of time to be able to meet future costs in respect of lawyers. These sums were particularly important to the appellants given their otherwise financially straitened circumstances. Similarly, that future costs were not identified in a quantified way does not seem to me to be of significance. Further, that the costs dispute related to past costs was not determinative of the appellants’ intention to use funds to seek advice and, if so advised, prepare evidence, being the transcript from the Tribunal hearing. The first appellant deposed that she had “yet to pay all fees outstanding” to her solicitor and barrister for the Federal Court proceedings. Insofar as the primary judge proceeded on the basis that the appellants were required to or would pay those amounts first I do not see a basis for that reasoning. The lawyers appearing on 9 May 2018 were the same lawyers who had represented the appellants in the appeal before Flick J. I do not accept the submission on behalf of the Minister that additional evidence was necessary as to the basis on which the appellants’ lawyers may act.

78    The countervailing considerations were that the matter had been set down for hearing and that some weeks had passed since the matter was remitted by Flick J. But throughout that period the appellants had been impecunious by reason of spending all of the family’s savings ($18,000) on the Federal Court proceedings to correct the procedural errors made by the Federal Circuit Court.

79    If House v The King [1936] HCA 40; 55 CLR 499 at 504-505 is directly applicable, it is not enough that the judge composing the appellate court considers that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. Here the exercise of the discretion to refuse the adjournment has meant that the appellants have been denied the provision of a reasonable opportunity to present evidence and to make submissions.

80    In my opinion, the primary judge has erred in assessing the matter without reference to the characteristics of the appellants, being parties seeking judicial review in circumstances where the earlier application for judicial review by the Federal Circuit Court had miscarried in the manner described by Flick J.

81    Other relevant characteristics of the appellants were that they had been represented by lawyers before Flick J, they wished to be represented by lawyers on the re-hearing of their judicial review application, and, more immediately, they wished to have lawyers review the material and to put on further evidence if so advised. The temporary but finite obstacle was that the appellants asked for three to four months to resolve the costs dispute and save money to have that legal representation. To the extent to which funds had become available in consequence of the costs order made by Flick J, those funds had only become available very recently and further amounts would be forthcoming. The common position seemed to be those amounts would shortly become available.

82    In my opinion Judge Street took insufficient regard of these matters and also failed to take into account that the appellants, if so advised, wanted to amend. It is not to the point to reason, as did Judge Street, “The identification of the desire to put on the transcript without any identified relevant ground to which it could go is of further concern.” This was to put the cart before the horse as the advice had not yet been forthcoming for lack of funds in circumstances where the appellants had spent all their savings in having corrected by Flick J the procedural errors earlier made by Judge Street. As I have said, the appellants specifically adverted to the possibility of amending their grounds once their lawyers had reviewed the transcript. In my view Judge Street erred in failing to pay sufficient attention to the steps already taken in that process.

83    In my view it was not enough to reason, “I am not satisfied on the basis of the evidence in the first applicant’s affidavit that the applicant is likely to be able to obtain funds to meet future representation and/or to pay the cost of the transcript in circumstances where these proceedings were commenced on 3 December 2015 and no such step has been taken by the applicants to date.” This is to ignore the missteps corrected by the orders of Flick J and to ignore the substantial expenditure the appellants made in having those missteps corrected. It is also to ignore the steps which were being taken by the appellants to secure the costs owing to them by the order of Flick J.

84    The appellants were by no means well-resourced such that those matters can be put to one side.

85    All of this was dependent on funds, in circumstances where those funds were likely to become available. As counsel for the appellants submitted, “money is money” to the appellants and it is not a firm basis to refuse the adjournment by saying that the forthcoming sum was in respect of past costs.

86    It does not appear to me that Judge Street took account of what was at stake for the appellants, that is, their claims for a protection visa. Judge Street did recognise that jurisdictional error is a technical area of the law but does not appear to have given weight to counsel submitting that he was not in a position that day to address the substantive merits of the application.

87    In my opinion this is a case where the judge acted upon a wrong principle, in that he allowed an understandable desire for speed and efficiency (“these proceedings having been fixed for hearing”) to trump the appellants’ right to procedural fairness in the particular circumstances of the case, including its history. It is correct to say that the proceedings had been fixed for hearing, but it is not suggested that it was fixed for hearing at the appellants’ instigation or with prior notice to them and the application in a case for the hearing date to be vacated was not in the circumstances late. But for the workload of the Federal Circuit Court, Judge Street noted at [23] of his judgment in [2018] FCCA 1162 given on the same day, the application in a case could have been listed earlier. That it was not was not the fault of the appellants.

88    Lastly, at [17], Judge Street said the appellants had “ample time and opportunity”, but again this is to take the matter out of the context of the case having been relevantly on hold in the Federal Circuit Court while the appellants’ appeal was being heard and determined.

Conclusion and orders

89    In the result I uphold grounds eight and nine of the notice of appeal: see [19] above. However, as I have said, I am not persuaded that a reasonable apprehension of bias on the part of Judge Street has been established. I therefore dismiss grounds five, six and seven. In relation to grounds one to four, it is not appropriate to deal with them, this Court having found there was a denial of procedural fairness in the refusal of an adjournment. In light of these conclusions, counsel for the Minister was content to leave to the Court the appropriate form of the remittal order. I consider that the appropriate order should be that the application be remitted to the Federal Circuit Court differently constituted. Again, in light of my conclusions, the parties were able to reach agreement on the appropriate costs orders.

Associate:

Dated:    14 November 2018