Zonnevylle v Secretary, Department of Communities and Justice

"[21] The onus of demonstrating grounds for recusal on the basis of actual bias lies with the party asserting it: Jia v Minister for Immigration and Multicultural Affairs [1998] FCA 768; (1998) 84 FCR 87 at 106, 107 (per French J) cited with approval in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [37] (per Gleeson CJ and Gummow J).

[22] The focus of an enquiry into actual bias is upon whether the judge is sufficiently impartial to permit justice to be done: QYFM at [120] (per Edelman J).

[23] A finding of actual bias requires a finding that a judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Jia Legeng at [72].

[24] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun) at 127 (per Burchett J). As was said by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97] (and the authorities cited therein), a claim of actual bias must be distinctly made and clearly proved, should not be made lightly, and requires cogent evidence.

[25] Actual bias requires an "assessment of the state of mind of the judge in question": Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. The only person truly capable of knowing whether actual bias is present in the person's mind is the subject judge, but an objective assessment must also be undertaken by the subject judge and others: QYFM at [115]-[120].

[26] Actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022; (1997) 149 ALR 281 at 289-290 (per Finkelstein J).

[27] In Jia Legeng, Hayne J noted that bias may be occasioned by an interest in the outcome, by affection or enmity, or by prejudgment: at [183]. His Honour set out several distinct elements underlying the assertion that a judge has prejudged or will prejudge an issue on the basis of an opinion they hold (at [185]):

(1) First, there is a contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.

(2) Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue.

(3) Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.

[28] His Honour observed, at [186], that allegations of actual bias through prejudgment often fail at the third step. This is because, notwithstanding whatever preconceived opinions are held or even expressed by the decision-maker, it does not follow that the evidence will be disregarded.

[29] These principles would equally apply to a decision-maker in the Tribunal."

1. There are two matters that I am required to consider:

(1) firstly, my own subjective assessment as to whether I am actually biased; and

(2) secondly, an objective assessment as to whether I am actually biased.

1. As to the subjective assessment, I do not consider that I have any preconceived ideas about the matters in issue in this appeal and consider myself open to persuasion. I note that this hearing today is a call over.
2. As to the objective assessment, I am not satisfied that the fact that I dismissed an application by the appellant in another appeal for leave to issue a summons provides any basis for saying that I would not consider the matters arising on the call over on the basis of their merits.
3. I note that for actual bias in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [185] Hayne J identified that three steps are required to be established:

(1) firstly, that I have an opinion on the relevant matter in issue;

(2) secondly, that I would apply that opinion to the matter in issue; and

(3) thirdly, I would do so without giving the matter first consideration in the light of whatever facts and arguments may be relevant to the case.

1. I am not satisfied that any of those three matters have been demonstrated or established by the appellant. I, again, note that this is a call over to prepare an appeal for hearing.

1. As to apprehended bias, the relevant principles were set out by the Appeal Panel in Jeray v Blue Mountains Council [2025] NSWCATAP 225 at [41]- [45]:

"[41] The High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) definitively stated the principles with respect to apprehended bias.

[42] In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 (QYFM) the High Court repeated these principles. Kiefel CJ and Gageler J at [37]-[38] made the following observations (citations omitted):

"[37] The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".

[38] Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer."

[43] Gordon J at [67]-[73] made the following observations (citations omitted):

"Test for apprehended bias

[67] As this Court held in Ebner v Offıcial Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The Ebner test has two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

[68] Four aspects of the test are critical to observe. First, it is an objective test: it does not require a conclusion about the judge's actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done.

[69] Second, it is a test of possibility, not probability - whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision-maker. That said, a finding of apprehended bias is "not to be reached lightly". In determining whether an apprehension of bias arises, relevant considerations include "the legal, statutory and factual contexts in which the decision is made" and "the nature of the decision ..., what is involved in making the decision and the identity of the decision-maker".

[70] Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty". Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: "the hypothetical observer would recognise that judges are human, not a 'passionless thinking machine' or robot just assessing information".

[71] Fourth, the adjective "lay" in relation to the fair-minded observer is critical - "[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer" with the knowledge and professional self-appreciation of a lawyer (105), let alone that of an experienced judge. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. "[I]t is the court's view of the public's view, not the court's own view, which is determinative".

Knowledge of the fair-minded lay observer

[72] The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made (108), and the circumstances leading to the decision. The fair-minded lay observer is taken to have "a broad knowledge of the material objective facts", as distinct from a detailed knowledge of the law or of the character and ability of the decision-maker. In considering whether an allegation of apprehended bias on the part of a judge is made out, "the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case".

[73] As the test is objective, the state of mind of the judge in question is irrelevant. So too are the reasons for judgment given by the judge ex tempore or published by the judge after the trial. The test turns on the facts and circumstances that might give rise to the apprehension of bias at the time of the hearing and determination. ..."

[44] Edelman at [162], Gleeson J at [225]-[226], and Jagot J at [293] referred to the test in Ebner.

[45] More recently the plurality of the High Court (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) in Director of Public Prosecutions (Vic) v Smith [2024] HCA 32; (2024) 98 ALJR 1163 at [92] referred to the threefold test in Ebner, citing QYFM at [38]."

1. It is clear from this exposition of principles that there are three matters that need to be established:

(1) firstly, the identification of a factor which is said might lead me to resolve the matter other than on its legal and factual merits;

(2) secondly, the articulation of the logical connection between that factor and the apprehended deviation from deciding the question on its merits; and

(3) thirdly, an assessment of the reasonableness of that apprehension from the perspective of a fair-minded observer.

1. I note that in Dunstan v Orr [2022] FCA 1006 at [76] Wigney J cited Hamod v New South Wales (No 11) [2008] NSWSC 967 at [20] where Harrison J said that unfavourable decisions against a party "are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias".
2. I am not satisfied that the appellant has articulated any factor that might lead me to resolve the issues arising on the call over other than upon its legal and factual merits. The decision about which he has complained about is in a different appeal. He has identified no logical connection between that decision and the apprehended deviation from the issues that arise on this call over and I am not satisfied that there is any reasonable basis for his apprehension. The use of the words "corrupt, perverted, harassing, not capable of being honest, lacking integrity and not fit to be a Principal Member" without any basis provided for them do not establish an apprehension of bias.

(1) The application of the appellant that Principal Member G Blake AM SC disqualify himself is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.