QYFM v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

Lower Court Judgment

15/09/2021 Federal Court of Australia (McKerracher, Griffiths and Bromwich JJ)

[2021] FCAFC 166

Catchwords

Courts and judges – Bias – Reasonable apprehension of bias – Disqualification – Where, prior to appointment, judge as Commonwealth Director of Public Prosecutions: (a) instituted and carried on prosecution of QYFM on indictment, for which QYFM convicted; and (b) appeared to successfully oppose appeal by QYFM against conviction – Where QYFM brought challenge to Minister’s decision not to revoke cancellation (required by QYFM's conviction) of QYFM’s visa – Where application for disqualification brought against judge on basis of apprehended bias – Where judge heard application alone, refused to disqualify himself and sat on Full Court appeal challenging primary judge's decision dismissing application for judicial review of Administrative Appeals Tribunal's decision to affirm cancellation of QYFM's visa – Whether application for disqualification of single member of Full Court on basis of apprehended bias should be decided by single judge alone or by Full Court – Whether judgment of Full Court liable to be set aside if single judge affected by apprehended bias.

Constitutional Law – Chapter III – Judicature of the Commonwealth – Impartiality of judiciary – Bias – Reasonable apprehension of bias – Proper application of test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.