QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors[2023] HCA 5
[14]
Mr Al-Hajj is a participant of the National Disability Insurance Scheme (NDIS). Mr Al-Hajj made an application to the Administrative Appeals Tribunal (AAT) on 27 June 2024 for review of a decision made by the National Disability Insurance Agency (Respondent) on 25 June 2024. That decision confirmed a decision made by the Respondent on 5 February 2024 to approve a statement of participant supports (SOPS) in Mr Al-Hajj's NDIS plan.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[1] Mr Al-Hajj's review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[2] In this Statement of Reasons, the ART will hereafter be referred to as 'the Tribunal'.
[15]
On Saturday 14 February 2026 the Applicant sent an email to the Tribunal which in effect requested that the Tribunal recuse herself (recusal application).
Mr Al-Hajj provided submissions in support of his recusal application on 12 March 2026. In those submissions Mr Al-Hajj set out the grounds for his recusal application as follows:
His submissions are not being considered with the same level of attention or neutrality as those made by the Respondent. He has observed what appears to be consistent acceptance of submissions made by the Respondent without equivalent consideration of his own submissions.
The Respondent's adjournment request was granted without hesitation and his objection to that adjournment was dismissed without detailed consideration.
His request for additional time to obtain legal representation was refused.
The Tribunal made a statement during the proceeding "This is my opinion and the court's opinion, and you must listen to it". He found this comment dismissive of his position and felt his submissions were not being meaningfully considered.
He requested "the not be inclusion of Dr Ahmed's name in a report to be not included previously submitted by Dominique and myself, which was not permitted". These refusals contribute to his concern relevant information supporting his position was not being allowed or considered within these proceedings.
Taken together, the abovementioned procedural decisions have created the perception that the Respondent's submissions have been given greater weight than his own.
He has not had adequate procedural support from the Tribunal throughout the proceeding. He has made several requests for legal representation; legal representation 'is a fundamental right' to ensure the matter is handled fairly and properly; and despite his requests the Tribunal insisted he attend the hearing without legal representation.
The Respondent filed submissions regarding the recusal application on 20 March 2026. In short, the Respondent contends the grounds for recusal are not substantiated
[16]
Section 37(1) of the Administrative Review Tribunal Act 2024 (ART Act) provides that the President may direct that a member or members constitute the Tribunal for the purposes of a proceeding in the Tribunal. When so directed, a member has a duty to hear and determine an application for review.[3] That duty is however constrained by a fundamental principle that a review will be heard and determined by an independent and impartial tribunal.[4] Actual bias or an apprehension of bias will require a presiding member to recuse themselves for the purposes of a proceeding.[5]
Actual bias requires that one is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.[6] The question is not whether a decision-maker's mind is blank, it is whether it is open to persuasion.[7] An allegation of actual bias is very serious - it must be distinctly made and clearly proved.[8]
An apprehension of bias will be established where a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[9] The question of whether there is an apprehension of bias is one of possibility not probability.[10] The observer is taken to be reasonable, and the decision-maker being observed is a professional decision-maker whose training, tradition and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial.[11]
Mr Al-Hajj's application for review was made on 27 June 2024. He was legally represented by Legal Aid NSW from 2 September 2024 until 14 September 2025. He has otherwise been represented by his service provider Mr Sam Gad (Mr Gad) of Philo Care Services Pty Ltd.
On 11 September 2025 it was directed that I constitute the Tribunal for the purposes of this proceeding. On that same date, the parties were notified the application had been listed for a hearing on 8 and 9 October 2025.
On 30 September 2025 the Respondent filed an agreed joint tender bundle.
On 6 October 2025 at 8:03PM Mr Gad emailed the Tribunal and the Respondent to advise Mr Al-Hajj would be calling Farah Khan (Ms Khan), a behaviour support practitioner and Toni Ysabel-Bicos (Ms Ysabel-Bicos), an occupational therapist to give oral evidence at the hearing on 8 October 2025. No document prepared by Ms Khan was included in the agreed joint tender bundle.
On 6 October 2025 at 8:29PM Mr Gad filed further material on Mr Al-Hajj's behalf. That material included:
A discharge summary from Bankstown Aged and Mental Health Care dated 17 September 2025.
An Interim Behaviour Support Plan dated 3 October 2025 prepared by Ms Khan.
A Comprehensive Behaviour Support Plan dated 5 October 2025 prepared by Ms Khan.
A Functional Behaviour Assessment dated 5 October 2025 prepared by Ms Khan.
A breakdown of recommended care and support hours dated 29 September 2025 authored by Mr Gad.
An undated 'Statement to the Court' signed by Mr Al-Hajj.
The hearing on 8 October 2025 commenced as scheduled at 10:00AM. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal has reviewed the recording of the hearing on 8 October 2025 and notes the following:
The Respondent raised a concern that Mr Gad's email dated 6 October 2025 and referred to in paragraph [12] was the first the Respondent knew Mr Al-Hajj intended to call any witness to give oral evidence.
Shortly after the commencement of the hearing, Mr Gad filed an occupational therapy report dated 3 October 2025 prepared by Ms Ysabel-Bicos.
The Tribunal raised the late filing of evidence, which included the material referred to in paragraph [13] and Ms Ysabel-Bicos' report dated 3 October 2025 (late material) and suggested there were 2 ways it could proceed:
The first was to restrict the scope of the review under s 53 of the ART Act so as to limit the evidence it would consider to that filed before a particular date. The Tribunal explained the effect of this would be to exclude the late material from consideration. The Tribunal acknowledged Mr Al-Hajj had gone to the trouble and expense of obtaining the late material.
The second was to allow the late material to be admitted into evidence; but in those circumstances, the hearing would need to be adjourned, to resume at a date in the future. The Tribunal explained why the admission of the late material into evidence would require the hearing to be adjourned.
The Tribunal then stood the matter down for 10 minutes so that Mr Al-Hajj and Mr Gad could discuss what the Tribunal had explained about the 2 ways it could proceed; and to allow Counsel for the Respondent to take instructions in relation to this. Both parties indicated they would not require longer than 10 minutes.
When the hearing resumed the Respondent advised it was their view the matter may need to be adjourned. Having briefly scanned Ms Ysabel-Bicos' report dated 3 October 2025, the Respondent noted Ms Ysabel-Bicos had seen Mr Al-Hajj on 30 September 2025, so as a practical matter even if that report was not admitted into evidence, in circumstances where she is going to be called as a witness she is ultimately going to speak to matters contained in that report anyway. And further, Dr Ahmed was unavailable to give evidence on 9 October 2025 and it was apparent his very limited availability on 8 October 2025 was likely now an issue, hence a further hearing date in the future would be required in any event. In short, the Respondent did not object to the late material being admitted into evidence, but in those circumstances sought to adjourn the hearing.
When Mr Gad and Mr Al-Hajj were invited to comment, having heard the Respondent's position, Mr Gad voiced concerns regarding Dr Ahmed's assessment of Mr Al-Hajj in March 2025. No indication was given that Mr Al-Hajj did not wish to rely on the late material, or that he objected to the hearing being adjourned.
Mr Al-Hajj contends the Respondent's adjournment request on 8 October 2025 was granted without hesitation and his objection to that adjournment was dismissed without detailed consideration. Having reviewed the hearing held on 8 October 2025, this was not so. The hearing went for 2.5 hours. The discussion regarding the late material and how that would be dealt with went for 1 hour and 5 minutes (excluding the 10 minutes the matter was stood down). Noting Mr Al-Hajj's application had been before the Tribunal since 27 June 2024, he had already had a reasonable opportunity to present his case and the Tribunal could have made an order under s 53 of the ART Act to exclude the late material from consideration. The Tribunal discussed at length with the parties the 2 ways it could deal with the late material. The Tribunal stood the matter down so that the parties could each consider these options before commenting. When the hearing resumed, both parties were given an opportunity to comment and at this point neither Mr Al-Hajj nor Mr Gad objected to the adjournment. The decision to adjourn the hearing was, to the Tribunal's mind, reasonable in all of the circumstances of the matter. It was not an arbitrary or unreasonable exercise of a discretionary power. It was intended to afford Mr Al-Hajj the opportunity to rely on the late material; and to give the Respondent a reasonable opportunity to consider and respond to that.
In a Hearing Certificate filed by the Respondent on 17 October 2026 the Respondent confirmed they would be calling Dr Taveer Ahmed (Dr Ahmed) to give oral evidence. Dr Ahmed is a psychiatrist who was engaged by the Respondent to assess Mr Al-Hajj via telehealth on 28 March 2025. The Respondent has filed and relies upon a report prepared by Dr Ahmed dated 31 March 2025.
On 22 October 2025 the parties were informed a resumed hearing had been scheduled to commence on 18 February 2026.
In an email to the Tribunal and the Respondent dated 31 October 2025, Mr Gad:
Requested the Tribunal 'reinstate legal representation to assist [Mr Al-Hajj] during the hearing, ensuring equal opportunity for his case to be heard properly'.
Stated that in a document dated 24 June 2025 Mr Al-Hajj's former solicitor 'requested the deletion of Dr Ahmed's report and objected to its inclusion in the evidence'; and in those circumstances raised concerns the Respondent intends calling Dr Ahmed to give oral evidence at the hearing.
On 3 November 2025 the Tribunal emailed Mr Al-Hajj, Mr Gad and cc. the Respondent. In that email the Tribunal acknowledged Mr Gad's request for the appointment of a legal representative; informed Mr Gad and Mr Al-Hajj the Tribunal cannot appoint or arrange legal representation for parties; noted Mr Al-Hajj was previously represented by Legal Aid NSW; suggested he may wish to contact Legal Aid NSW to discuss whether they can provide any further assistance; and provided a link to the Department of Health, Disability and Ageing's webpage regarding the NDIS Appeals Program.
With respect to the document dated 24 June 2025 prepared by Mr Al-Hajj's former solicitor and referred to by Mr Gad in his email dated 31 October 2025, this is the 39-page Statement of Facts, Issues and Contentions which was filed by Legal Aid NSW on Mr Al-Hajj's behalf. In that document at paragraph [180] it is contended the Tribunal is not well assisted by Dr Ahmed's report and should place little weight on the opinions within the report to the extent they depart from the consensus of expert material otherwise before the Tribunal. Paragraphs [181] to [185] of that document set out why Legal Aid NSW, on Mr Al-Hajj's behalf, contend the Tribunal should place little weight on Dr Ahmed's report.
Mr Al-Hajj's recusal request relies in part on what he has described as the Tribunal's 'refusal' of his request that Dr Ahmed's report 'be not included'. Whilst this is an application made to the Tribunal by Mr Al-Hajj, the Respondent is also a party to the proceeding. The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to present the party's case, make submissions and adduce evidence.[12] It is a matter for each party what evidence they file and rely upon. The Respondent has filed and relies upon a report prepared by Dr Ahmed. The Respondent has indicated Dr Ahmed will be made available for cross-examination. It is open to parties, as Legal Aid NSW have already done on Mr Al-Hajj's behalf, to make submissions regarding what weight the Tribunal should give any evidence. The weight to be given to evidence is a matter for the Tribunal.
On 6 February 2026 Mr Al-Hajj emailed the Tribunal and the Respondent requesting that the hearing due to commence on 18 February 2026 be adjourned 'due to the large amount of medication I am taking, which prevents me from representing myself effectively and hinders my understanding of the law'. On that same date, Mr Gad emailed the Tribunal and the Respondent to request that the hearing due to commence on 18 February 2026 be adjourned, and provided the following reasons for the adjournment request:
Mr Al-Hajj's mental health has deteriorated significantly since the last hearing and has been exacerbated by the critical illness of his aged mother. His medications affect his concentration and emotional regulation. He is trying to raise money to travel to visit his ill mother. He cannot endure the scheduled hearing unrepresented.
An application had been lodged with Legal Aid NSW. On 30 January 2026 Mr Al-Hajj was granted legal representation however the newly appointed legal representative requires additional time to review material, take instructions and prepare an effective case.
On 6 February 2026 the Tribunal emailed Mr Al-Hajj, Mr Gad and cc. the Respondent to advise Mr Al-Hajj and Mr Gad it had not received any notice of acting from Legal Aid NSW, and asked that Mr Al-Hajj provide evidence from Legal Aid NSW that he was granted legal aid on 30 January 2026 and the scope of that grant of legal aid; and a letter from the legal representative appointed by Legal Aid NSW confirming they are acting and the basis for the adjournment request. On 9 February 2026 Mr Gad provided a letter from Legal Aid NSW which confirmed Legal Aid NSW received Mr Al-Hajj's application for Legal Aid on 30 January 2026; they endeavour to assess applications for NDIS Appeals Legal Services within 30 days of receipt; and if he has an upcoming case event or must comply with directions during this time, he may apply to the Tribunal for an adjournment or ask for an extension of time.
In an email dated 13 February 2026 the Respondent informed the Tribunal, Mr Gad and Mr Al-Hajj they opposed the request to adjourn the upcoming hearing.
Despite being on notice from 22 October 2025 that the hearing would resume on 18 February 2026, the letter from Legal Aid NSW confirmed Mr Al-Hajj had not applied for a grant of Legal Aid until 30 January 2026. No explanation was provided by or on behalf of Mr Al-Hajj as to why it took him 3 months after the adjourned hearing to apply for a grant of Legal Aid. No objective evidence regarding the current status of Mr Al-Hajj's current mental health, the effect of his medication, or his mother's current ill health, was provided in support of the adjournment request. In these circumstances and noting the Tribunal's objective in s 9 of the ART Act, the age of the review application, the previous adjournment, and not knowing whether Mr Al-Hajj would likely be in any better position to participate in a hearing if it were adjourned to a later date, the Tribunal refused the adjournment request. The parties were advised of this by email on 13 February 2026.
A basis on which Mr Al-Hajj's recusal application relies is that the above refusal of his adjournment request denied him additional time to obtain legal representation, which he contends 'is a fundamental procedural safeguard' and a 'fundamental right to ensure that the matter is handled fairly and properly'. Section 66 of the ART Act provides that a party to a proceeding in the Tribunal may choose another person to represent the party in the proceeding. This does not mean the Tribunal cannot or should not conduct a review unless a person who would like to be legally represented, is legally represented. Very often a party to a proceeding in the Tribunal would like to be legally represented, however they are unable to obtain legal representation. It would be entirely inconsistent with the Tribunal's objective in s 9 of the ART Act to indefinitely adjourn a proceeding because a party would prefer to be legally represented and is not. Despite having been on notice for months that the resumed hearing would commence on 18 February 2026, Mr Al-Hajj did not lodge his application for a grant of Legal Aid until 30 January 2026 and provided no explanation for this delay. In refusing Mr Al-Hajj's adjournment request the Tribunal considered he had had a reasonable opportunity to try to secure legal representation.
On Saturday 14 February 2026 the Applicant made his recusal application.
In circumstances where a substantive hearing was to commence at 10:00AM on 18 February 2026, the parties were advised on 16 February 2026 that the Tribunal had listed an interlocutory hearing to consider the recusal application at 9:30AM on 18 February 2026. Later on that same date, Mr Gad made a further request to adjourn the hearing that was to commence on 18 February 2026, and attached to that adjournment request was:
A letter signed by Dr Ahmed Elarif dated 16 February 2026. In this letter Dr Elarif opined Mr Al-Hajj is not medically fit to currently attend or participate in court or tribunal proceedings; his current medication regime significantly affects his concentration, judgment, emotional regulation, and capacity to engage in legal proceedings. Dr Elarif opined Mr Al-Hajj requires 6 to 9 weeks to stabilise; and that proceeding with a hearing during this period would place Mr Al-Hajj at risk of significant psychological harm and would compromise his ability to understand, respond to, or advocate for himself.
An undated letter signed by Claudette Raad, a Behaviour Support Practitioner. In this letter Ms Raad stated that according to his clinical reports Mr Al-Hajj is currently experiencing significant mental health difficulties, his mental health conditions impact his psychological stability, daily functioning, and ability to effectively engage with legal processes; and requested the decision to refuse the adjournment request be reconsidered to allow Mr Al-Hajj time to engage adequate legal representation and to address immediate mental health needs.
Upon receipt of the additional material referred to in paragraph [28], the Respondent neither consented to, nor opposed the adjournment request.
The Tribunal, appropriately, considered the information referred to in paragraph [28], in particular the letter provided by Dr Elarif, and decided based on that the interlocutory hearing on 18 February 2026 at 9:30AM would be vacated and the substantive hearing due to resume on 18 February 2026 at 10:00AM would be adjourned. The parties were advised of this by email on 17 February 2026.
On 27 February 2026, the Tribunal made a Direction that on or before 13 March 2026 the Applicant must give the Tribunal and the Respondent details of the grounds for his recusal application and any submissions he would like the Tribunal to consider in support of his recusal application; and that on or before 20 March the Respondent may give the Tribunal and the Applicant any submissions they would like the Tribunal to consider regarding the Applicant's recusal application. In the Direction made 27 February 2026, the Tribunal also made clear it would proceed to consider the Applicant's recusal application 'on the papers' on or after 23 March 2026. The reason why the Tribunal would proceed to consider the Applicant's recusal application 'on the papers' was based on the opinion expressed by Dr Elarif in his letter dated 16 February 2026 regarding Mr Al-Hajj's ability to participate in any hearing for up to 9 weeks from 16 February 2026.
Mr Al-Hajj provided submissions in support of his recusal application on 12 March 2026. Those submissions are summarised at paragraph [4]. In this submission, in addition to outlining the basis for his recusal application, Mr Al-Hajj requested the Tribunal consider transferring the hearing to Sydney for an in-person appearance as he considers this will allow him to properly participate and present his case. No decision has been made with request to this request, and in these circumstances the Tribunal does not consider this bears upon its consideration of whether the test for bias, or the test for an apprehension of bias, is established. Mr Al-Hajj's request for an in-person hearing in Sydney will be considered separately to this recusal application.
The Tribunal has considered the submissions filed on 12 March 2026 by Mr Al-Hajj. It has considered the grounds set out therein, both individually and cumulatively. The Tribunal has considered the history of this application since constitution, including the Tribunal's conduct during the hearing on 8 October 2025, procedural decisions made by the Tribunal, and discretionary powers exercised by the Tribunal. The Tribunal does not accept Mr Al-Hajj's assertion that procedural decisions have created the perception that the Respondent's submissions have been given greater weight than his own, or that he has not had adequate procedural support from the Tribunal throughout the proceeding. The Tribunal finds Mr Al-Hajj has not established that the Tribunal is in fact so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments are presented.[13] The Tribunal further finds no fair-minded lay observer might reasonably apprehend that it might not bring an impartial mind to the resolution of the question it is required to decide, that being whether 24/7 1:1 support worker assistance and weekly psychology meet the legislative criteria to be funded as reasonable and necessary supports in Mr Al-Hajj's SOPS.[14] For these reasons, neither the legal test for actual bias, nor the legal test for an apprehension of bias, is met.
Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
Having considered the 2 ways it could proceed and comments made by the parties, the Tribunal informed the parties it would allow the late material to be admitted into evidence and the hearing would be adjourned.
The Tribunal noted the application had been before the Tribunal since 27 June 2024; it is an aged application and it is incumbent on the Tribunal to finalise the application. In those circumstances and to avoid any further delay the Tribunal explained to the parties it would consider limiting the scope of the review such that it would only consider evidence filed by 12:00PM on 8 October 2025 and it would limit the issues that will be considered to those the parties had each confirmed in their respective Statements of Facts, Issues and Contentions as the supports in issue on review. The Tribunal explained what the practical implications of such an order would be.
The Tribunal then offered to stand the hearing down briefly so that Mr Al-Hajj and Mr Gad could discuss the Tribunal's indication it would consider limiting the scope of the review in this way; and to allow Counsel for the Respondent to take instructions in relation to this. Both parties indicated they did not need the Tribunal to stand the matter down; the Respondent and Mr Al-Hajj each informed the Tribunal they did not take issue with the order proposed by the Tribunal. The Tribunal made an order under s 53 of the ART Act that limited the issues that will be considered to whether 24/7 1:1 support worker assistance and weekly psychology are reasonable and necessary supports that will be funded in Mr Al-Hajj's SOPS; and limited the evidence that will be considered to that which was filed on or before 12:00PM on 8 October 2025.
The Tribunal then made a Direction that the parties file hearing certificates by 15 October 2025 and an agreed witness schedule by 28 October 2025; and the Respondent file an updated Statement of Facts, Issues and Contentions by 21 November 2025. The Tribunal explained why it was making each of these directions and the importance of compliance. During this process, Mr Al-Hajj interjected and stated he did not wish to adjourn the hearing and began to revisit the issue of whether the late evidence would be admitted into evidence. The Tribunal acknowledged Mr Al-Hajj's statement but informed him that it had after a lengthy discussion with the parties already decided the late material would be admitted into evidence, the that the hearing would be adjourned, and it would not revisit those issues. The Tribunal did not state "This is my opinion and the court's opinion, and you must listen to it" as per Mr Al-Hajj's recollection.