Paul Cutler's Migration Case Law Blog
Recusal Application
Recusal applications can be awkward and difficult. It is not easy to tell a judge that there is a perception that he/she is baised and shouldn’t sit in judgment on a particular matter. Recusal applications don’t occur very often and applications involving multi-member appellate are even rarer. Consider the following facts:
- Prior to his appointment to the Federal Court, Bromwich J held the office of Commonwealth Director of Public Prosecutions;
- Bromwich J was one of a 3 member Full Court in the matter of QYFM;
- A few minutes before the hearing was due to begin, his Honour sent an email to the parties informing them that he had appeared for the Crown against the current applicant in an unsuccessful appeal against conviction in the Victorian Court of Appeal;
- When the hearing commenced, the Applicant’s counsel made an oral application for Bromwich J to disqualify himself;
- The Full Court briefly adjourned and when it resumed, McKerracher J invited Bromwich J to “deal with the application”. His Honour did not recuse himself and the hearing went ahead.
The Applicant appealed to the High Court (see QYFM v Minister for Immigration [2023] HCA 15). There were two issues. Firstly, was there a reasonable perception of apprehended bias? The High Court considered the relevant law (see Ebner’s Case). The Court found: “His Honour’s appearance as counsel against the appellant in his earlier conviction appeal was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that his Honour had formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party. “.
The second issue was how should a multi-member court deal with such a recusal application? The short answer is that it is a matter for the “whole court” (not just the individual judge concerned) to decide. Because these facts are very rare there is a very interesting discussion about how similar matters are dealt with in other jurisdictions and what can be learned from existing Australian authority.
Creative commons acknowledgment for the photograph.
Jurisdiction and the risotto
Much to the frustration of many clients, fact finding by the AAT is not normally able to be challenged in judicial review proceedings in the courts. One very limited exception to that proposition is if the fact finding is "irrational, illogical and not based on findings or inferences of fact supported by logical grounds". Those grounds are very difficult to make out. There are at least two...
Not necessarily de facto
Makhmudkhodjaeva v Minister [2020] FCAFC 88 is a recent Full Court case about refusal to approve a sponsorship in relation to a child visa. If the child's mother had a partner (either de facto or by marriage) then that person (Mr M) would need to meet the character test. The interesting issue in this case is that the mother denied she was in de facto relationship despite the facts that: ...
AAT Procedure
From the time that an application for review is lodged in the AAT to the time it is determined in a hearing is "around 470 days" (or about 15-16 months). There are however, provisions for "priority processing" and for a "fast track decision". These are both separate processes. The guidelines for priority processing are set out in a President's Direction. The requirements for a fast track...
Schedule 3
The general rule when applying for visas onshore is that you need to hold a valid visa to be able to apply for a visa of a different class. One of the exceptions is applications for a partner visas. However, if you don't hold a substantive visa when you apply for your partner visa, you will still need to comply with the schedule 3. That basically means that you have a 28 day period of grace...