Paul Cutler's Migration Case Law Blog

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:

1. Prior to his appointment to the Federal Court, Bromwich J held the office of Commonwealth Director of Public Prosecutions;
2. Bromwich J was one of a 3 member Full Court in the matter of QYFM;
3. 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;
4. When the hearing commenced, the Applicant’s counsel made an oral application for Bromwich J to disqualify himself;
5. 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.