Case: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158
Outcome: applied
There are at least two reasons why the first Ground of Appeal raised in this Court should be rejected. First, it was not an argument raised before the Federal Magistrates Court and no reason has been advanced as to why leave should now be granted to entertain the argument. Second, it is well accepted that a " reasonable apprehension " of bias must be " firmly established ": Re JRL, Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342. Mason J there observed (at 352): It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [1976] HCA 39 ; [(1976) 136 CLR 248] and Livesey [1983] HCA 17 ; [(1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; [(1969) 122 CLR 546 at 553 4]; Watson [(1976) 136 CLR at 262]; Re Lusink; Ex parte Shaw [(1980) 32 ALR 47 at 50 1]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. There is no basis upon which any " reasonable apprehension " of bias on the part of the Tribunal could be established. A review of the reasons for decision of the Tribunal does not establish anything other than the Tribunal reviewing the facts before it and the reasons for its decision. Where it is expedient in the interests of justice, a new argument may be allowed to be advanced on appeal which was not advanced at first instance: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 at [46] . In the present proceeding, it is not expedient in the interests of the administration of justice to allow a new argument to be raised on appeal which has no prospects of success.