mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264
Outcome: followed
In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.' 30 The Full Court's decision in NAHD 214 ALR at [21] succinctly states the relevant principles as follows: 'The enquiry is not directed to the personal thought processes of the decision- maker. It is directed to his or her conduct "objectified" through the prism of what a fair minded and informed observer would reasonably apprehend...It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality.'
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: considered
Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886. 17 In NAJT 147 FCR [166] Madgwick J identified relevant considerations in the exercise of the Court's discretion to grant leave to rely on new grounds. Such considerations include the prospects of success of the new grounds; whether an acceptable explanation has been provided as to why they were not raised in the Court below; whether it would be efficient to hear the new grounds; the interests of the appellant; the precedent value of any consideration of the issues; whether there is any prejudice to the respondents and whether any such prejudice can be remedied; and where in all the circumstances do the interests of justice lie. 19 The Court pays regard to the following considerations. First, while no explanation has been provided for the abandonment of the ground of apprehension of bias by counsel in the proceedings before Scarlett FM, the Minister has not claimed that any significant prejudice would result if leave is granted. This ground was raised by the appellant in his original application for review of the Tribunal's second decision and the Minister had prepared and filed a response to that ground in the Federal Magistrates Court. As noted by Madgwick J in NAJT 147 FCR [172], the Minister in migration appeals is not in the position of a personal litigant and does not bear the financial risks and strains of personal involvement in litigation. 20 Secondly the principle of the need for finality of litigation has not been adversely affected. The appellant has conducted the proceedings within the strict time limits imposed by the Act and this matter has proceeded to appeal without delay. The appellant's application for leave to amend the Notice of Appeal has not used more of the Court's resources than is usual in matters of this nature.
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: referred to
Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
Apprehension of bias is fundamentally contrary to the efficient and effective administration of justice, and if found to exist constitutes procedural unfairness. A breach of the obligation to provide procedural fairness constitutes jurisdictional error for the purposes of s 75(v) of the Constitution : see SAAP v Minister for Immigration and Multicultural and Indigenous affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 at 1027 per McHugh J at [83]. The Tribunal cannot fulfil its statutory function where apprehension of bias exists, since a decision attended by jurisdictional error is no decision at all: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476.
Case: R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248
Outcome: followed
In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.'
Case: Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583
Outcome: referred to
In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.'
Case: Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78
Outcome: referred to
In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.'
Case: Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: followed
In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.'
Case: SAAP v Minister for Immigration and Multicultural and Indigenous affairs [2005] HCA 24 ; (2005) 79 ALJR 1009
Outcome: considered
Apprehension of bias is fundamentally contrary to the efficient and effective administration of justice, and if found to exist constitutes procedural unfairness. A breach of the obligation to provide procedural fairness constitutes jurisdictional error for the purposes of s 75(v) of the Constitution : see SAAP v Minister for Immigration and Multicultural and Indigenous affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 at 1027 per McHugh J at [83]. The Tribunal cannot fulfil its statutory function where apprehension of bias exists, since a decision attended by jurisdictional error is no decision at all: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476.
Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: considered
The Minister submits that the Court should not grant leave to the appellant to rely upon the Amended Notice of Appeal, and refers the Court to SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [4] wherein the Court refused leave where an appellant had abandoned a ground of appeal. 22 The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.
Case: SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886
Outcome: cited
Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886. 21 Thirdly, the particular circumstances of this case are such that refusal to grant leave may lead to serious consequences for an appellant seeking asylum as considered in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at 548 and in SZEPN [2006] FCA 886 [16]. 22 The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: referred to
The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.
Case: Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568
Outcome: considered
In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 587 Toohey J said: 'There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case'. However the person making the waiver must have a full appreciation of his or her action. In Vyvyan v Vyvyan (1861) 30 Beav 65 at 74; 54 ER 813 at 817 the Court stated: 'Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim.'