EXK18 v Minister for Immigration and Citizenship

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283

BOX16 v Minister for Immigration & Anor [2018] FCCA 2910

BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76

CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385

CYA22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1489

Doggett v Commonwealth Bank of Australia [2019] FCAFC 19

Dunstan v Orr [2022] FCA 1006

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

EXK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1460

Galea v Galea (1990) 19 NSWLR 263

Gaudie v Local Court of New South Wales [2013] NSWSC 1425; (2013) 235 A Crim R 98

Helow v Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416

Heywood v Local Court of New South Wales [2024] NSWSC 1047

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

JVR24 v Trustee for Sydney Catholic Schools Trust (No 2) [2024] FedCFamC2G 1220

Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G 1

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Marasol Pty Ltd v Philips [2025] FCA 945

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Monks v Pieman Resources Pty Ltd [2025] FCAFC 121

Polsen v Harrison [2021] NSWCA 23

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148

R v George (1987) 9 NSWLR 527

Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674

Re J.R.L.; Ex parte C.J.L [1986] HCA 39; (1986) 161 CLR 342

RPS v R [2000] HCA 3; (2000) 168 ALR 729

Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The interlocutory application filed for the applicant on 9 September 2025 (recusal application), is dismissed.
2. The proceedings remain listed for final hearing at 10:15am on 22 September 2025.
3. The final hearing referred to in order 2 is to be heard by:

(a) Microsoft Teams with leave being granted to all parties to appear remotely; and

(b) the Sydney General Federal Law duty Judge for the week commencing 22 September 2025, and re-docketed to them by the Registry in due course.

1. A Microsoft Teams link will be circulated to the parties in advance of the hearing referred to in order 2 above.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. On 2 September 2025, the parties came before the Court for (what became) the hearing of an adjournment application. The adjournment was ultimately granted instanter and reasons were published on 5 September 2025: see EXK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1460 (adjournment judgment). Defined terms from the adjournment judgment will be used in these reasons where relevant.
2. On 9 September 2025, the following documents were filed for the applicant:

(a) interlocutory application (recusal application);

(b) Affidavit of applicant's solicitor annexing a transcript of the hearing event on 2 September 2025 (transcript); and

(c) written submissions (recusal submissions).

1. By the recusal application the following relief is sought:

1. The Honourable Judge Given recuse herself from this proceeding.

2. The proceeding be referred to the Sydney Registry for allocation to another judge.

3. Costs reserved.

1. So as not to jeopardise the current hearing date, I sought to list the recusal application at the first available opportunity. However, due to the unavailability of the Minister's Counsel at a time proposed to the parties, I listed the recusal application (with some difficulty to my hearing schedule) at 9:00am on 18 September 2025, being a time which was offered by the parties as being mutually convenient amongst them. The applicant's representatives were granted leave to appear by Microsoft Teams and a link was circulated to the practitioners, by my Associate, at or about 2:00pm on 17 September 2025.
2. At 9:00am yesterday there was no appearance by Counsel for the applicant. However, his solicitor was in the Microsoft Teams forum and spoke with my Associate. The proceedings eventually commenced at 9:05am once Counsel for the applicant had joined the hearing. He could be heard remotely but not seen. Counsel for the applicant explained that this was because:

Unfortunately, I didn't realise the hearing time had been changed and I need 15 minutes to make my way to chambers and get dressed, if the court pleases.

...I just did not read the email from my instructors carefully enough about the change time date - change hearing date.[1]

1. After ascertaining how long each of the parties anticipated they might require for oral submissions, the Court adjourned until 9:40am to accommodate the applicant's Counsel.
2. When the hearing resumed, Counsel for the applicant moved on the recusal application and read the Affidavit of his instructor, without objection. The Minister did not file written submissions or evidence in respect of the recusal application. Each of the parties provided helpful bundles of relevant authorities, upon which they relied and to some of which, the Court was taken during the hearing.

1. In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (ALA15) at [35] the Full Federal Court (Allsop CJ, Kenny & Griffiths JJ) summarised the longstanding test for apprehension of judicial bias (as identified in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) as being (emphasis added):

...whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248; Livesey v New South Wales Bar Assn [1983] HCA 17 ; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 (Ebner); Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 ; (2011) 242 CLR 283 (British American Tobacco)).

1. Their Honours went on, at [36] of ALA15, to elucidate the following principles in a case alleging apprehended bias:

(a) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(b) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (citing Ebner (supra) at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(c) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be "distinctly made and clearly proved" (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and

(d) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson) at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J, British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [47] to [48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).

1. While the fictional or hypothetical observer in the requisite test is not a lawyer (nor are they assumed to have a detailed knowledge of the law), they are taken to be reasonable and to not be "wholly uninformed and uninstructed about the law in general or the issue to be decided": see Johnson (supra) at [53] per Kirby J (citing R v George (1987) 9 NSWLR 527 at 536 per Street CJ) and Gaudie v Local Court of New South Wales [2013] NSWSC 1425; (2013) 235 A Crim R 98 per Johnson J at [87]. Rather, it is necessary to attribute to the fair-minded lay observer knowledge of all of the circumstances of the case: see CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 at [39]. In Helow v Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416 at [23], Lord Hope of Craighead observed the following (emphasis added):

The observer who is fair‐minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. ... Her approach must not be confused with that of the person who has brought the complaint. ... The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. ...

Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair‐minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

1. In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 (Doggett), the Full Federal Court (Kerr, Davies and Thawley JJ) said the following about claims of apprehended bias based in interlocutory proceedings or judgments (at [11]):

Claims of apprehended bias arise not infrequently, as they have in this appeal, in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings, in such circumstances, are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding...

1. In Re J.R.L.; Ex parte C.J.L [1986] HCA 39; (1986) 161 CLR 342 (Re J.R.L.) at 352 per Mason J (as his Honour then was) said the following in relation to allegations of apprehended bias based on the conduct of a judge during the litigation, which would include statements and findings made in interlocutory judgments (omitting footnotes):

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw . Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

1. In Dunstan v Orr [2022] FCA 1006 (Dunstan) Wigney J summarised principles pertaining to judicial conduct, relevantly in the context of case management hearings, as a basis for recusal at [74] to [77] as follows (referring at [74] to Re J.R.L. (supra)):

74. In the same case, Wilson J said (at 359-360):

A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be "strong grounds" (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd ) for inferring the existence of a reasonable suspicion. (Footnote omitted.)

75. The requirement that an apprehension of bias, based on judicial conduct, be "firmly established" was also emphasised in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at 100 (Gaudron and McHugh JJ) and British American Tobacco at [45], where French CJ said it "gives content to the requirement that an apprehension of bias, in that class of case, be reasonable" (see also [71] (Gummow J)). French CJ and Gummow J were in dissent in British American Tobacco, though the dissent mainly turned on the application of the facts to the relevant principles.

76. Apprehended bias will not generally be established by "pointing to adverse findings" in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [234] (Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that "a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias": Knaggs v DPP (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 at [95] ; see also SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36] ; Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [14] ; DOQ17 v Australian Financial Security Authority (No 2) (2018) 363 ALR 681; [2018] FCA 1270 at [33] . In Hamod v New South Wales (No 11) [2008] NSWSC 967, Harrison J said (at [20]) 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".

77. Where "numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively": Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [176] (Basten JA, with Allsop P and Macfarlan JA agreeing); see also Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [114] ; IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 at 192 ; Tarrant J, Disqualification for Bias (Federation Press, 2012), 301.

1. In Galea v Galea (1990) 19 NSWLR 263 at 279 Kirby A‐J observed the following:

In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context.

1. In RPS v R [2000] HCA 3; (2000) 168 ALR 729 (RPS) Callinan J also said the following at [94]:

In any trial, a manifestation of apparent bias towards counsel may only constitute relevant, apprehended bias in respect of a party if the conduct is such as to give rise to an appearance of bias against that party. Disparaging comments, however undesirable or deserved they might be, about counsel's conduct may or may not produce that appearance. The question, in respect of a jury trial in which facts and the final decision on them are not for the judge, will be, whether the conduct gives rise to an apprehension of bias against a party, not correctable and not corrected by very clear statements by the trial judge that factual matters and the ultimate decision were matters for them and them alone, together with any other necessary statements and explanations that may be necessary in the circumstances. Apprehended bias manifesting itself in respect of legal matters will usually constitute an error of law open to correction by an appellate court.

1. In Judicial Ethics in Australia[2] the Hon James Thomas AM observed:

All judges should regularly ask themselves whether they are being unnecessarily aggressive towards counsel or litigants. The deference with which judges are treated in court makes it easy to fall into this trap. This does not mean that the judges should tolerate rude counsel, permit repetitious questioning or put up with irrelevant argument. If judges do not run the equivalent of a tight ship, control is easily lost and cases tend to run at great expense to the parties and the state. Courts are robust institutions and it is undesirable that either judges or counsel should be too thin‐skinned about an occasional skirmish.[3]

1. I have also had regard to the recent discussion about Monks v Pieman Resources Pty Ltd [2025] FCAFC 121 per Halley, Meagher and Wheatley JJ at [57] to [63] in respect of the effect of the overarching purpose in case management.
2. I have had regard to all of the aforementioned principles in reaching my decision on the recusal application. To the extent that the background and context of the adjournment judgment is not wholly able to be derived from those reasons for judgment, additional matters will be addressed below.

1. Counsel for the applicant relied on the recusal submissions, which I had read in advance of the hearing and made brief, additional submissions-in-chief. Firstly, Counsel for the applicant emphasised that the apprehension of bias is to be assessed from a reasonably informed lay observer's perspective and said:

So when I look at the conduct of your Honour's that we have impugned as a lawyer, and many lawyers may look at that and, for instance, form the view or the apprehension that your Honour is simply trying to keep practitioners moving in a very busy list and the fact that there has been some sort of attack on practitioners in an application in a procedural setting does not mean that your Honour has formed a view in any way or is likely to be biased in any way towards the applicant. That is the view, I would imagine, of most lawyers whether they disagree with our characterisation of your Honours' conduct or not. However, the viewpoint of the lay observer may not be able to make that distinction. The lay observer might think that because your Honour has attacked the practitioners for the applicant, your Honour may carry some sort of bias over to the substantive proceedings.

1. The second point was he made, relying on the reasoning of Edelman J said in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [75], was that even a little bias is enough and:

It's not a question of a lot of bias or a little. As long as the line is crossed, the best thing to do is to recuse yourself.

1. In the absence of having filed written submissions, the first respondent's submissions at hearing are the only submissions made. These are summarised as follows.
2. By reference to the principles usefully distilled by Bell P (as his Honour then was) in Polsen v Harrison [2021] NSWCA 23 (cited in Heywood v Local Court of New South Wales [2024] NSWSC 1047 (Heywood) per Lonergan J at [13]), the Minister observes that the training, tradition and oath of a professional judge requires them to discard the irrelevant, the immaterial and the prejudicial. Within that scope, the Minister contends that part of the attribution of knowledge to the fair-minded lay observer is that they will appreciate the context in which a judge conducting an adjournment hearing would take into account validly expressed concerns about adherence to professional standards and the requirements of practice and procedure.
3. The Minister says it is evident from the adjournment judgment which, he submits, aligns with the concerns raised orally at the hearing, that the Court was expressing concerns to Counsel within the appropriate fulfilment of the duty of a Judge of this Court to uphold its standards.
4. The Minister says that the context in which the adjournment judgment was given is a matter of moment and can be distinguished from the circumstances of Adacot & Sowle [2020] FamCAFC 215 (Adacot & Sowle), upon which the applicant relied by reference to his bundle of authorities.[4]
5. In this regard, the Minister firstly says that knowledge with which the requisite hypothetical lay observer would be imputed would be a sufficient understanding of the stage of proceedings at which the "cut and thrust" occurred. Namely, that exchanges about (and the subsequent determination of) the adjournment application were not a hearing of the applicant's ultimate case, by which the Court was expressing views or engaging in commentary about arguments on a substantive application. Rather, the Minister observes that the Court was expressing concerns about an anterior issue, namely compliance with proper standards of conduct and adherence to court orders. The Minister says that the informed lay observer would understand that the concerns being expressed were only at that procedural level.
6. By further contrast to Adacot & Sowle the Minister says that on a proper application of principle to all the relevant circumstances, while there was a robust exchange between the Court and Counsel for the applicant, it was within the context of accepted failures of appropriate conduct concerning the meeting of the Court timetables, the sending of an inappropriate email and the Court's general concerns about upholding practice and procedure standards of the Federal Circuit and Family Court of Australia.
   1. The Minister says that, contrary to what is alleged for the applicant, there were no ad hominem attacks on any of the applicant's representatives, and that the concerns expressed at the hearing (which he submits were valid), also accorded with those expressed in the judgment. This submission does not offend the principle set out in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [67] per Gummow ACJ, Hayne, Crennan and Bell JJ, but rather goes to observing that the ultimate reasons for judgment did not seek to cover or sanitise the exchanges which had occurred.
7. In reply, Counsel for the applicant said that while he agreed that the distinction between an adjournment application hearing and a final hearing is a relevant one, he was not sure what the answer was as he had not found any authority which involved what to impute to the hypothetical lay observer in an interlocutory application, rather than in respect of a substantive hearing. He further said because the adjournment judgment:

contained what we say are findings or suggestions, which could also give rise to a reasonable apprehension of bias, even if that distinction was understood by a reasonable observer, the judgment itself might reinforce in the reasonable observer's mind that your Honour may be biased against the applicant's representatives. So they are not to be viewed in isolation.

1. The parties were agreed that the informed lay observer is not to be attributed with a detailed knowledge the law, nor will they view the matters identified through the prism of a lawyer. However, as was made clear in Helow (supra), nor is their observation to be taken from the perspective of the complainant.
2. In applying the requisite test, references to the lay observer having a broad knowledge of the material objective facts[5] is synonymous with saying they will be aware of context. That context will almost always include the nature of the hearing. This is reinforced by the authorities each of which clearly turn on their own facts and circumstances. As such, there is of course no seminal authority which sets out a distinction between the knowledge imputed to the hypothetical lay observer of an interlocutory hearing versus a substantive hearing. However, distinctions are frequently made based on the type of hearing as being relevant to context, and therefore key to forming part of the appropriate knowledge of all relevant matters of which the hypothetical lay observer is informed: see for example Asden Developments Pty Ltd (In Liq) v Dinoris [2015] FCA 729 (Asden) per Reeves J at [10], Dunstan (supra) per Wigney J at [2], Doggett (supra) at [11] and Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161 at [31] in relation to interlocutory and case management hearings, and RPS (supra) in which Callinan J discussed the contextual differences between bias in trials heard by judge alone, versus in the context of trials by jury.[6]
3. Relevantly, I accept that the informed lay observer would know that the adjournment application was not the substantive hearing. The further context of the hearing event would include that, by the time the adjournment application was made in Court on 2 September 2025, that no evidence, explanations nor any chronology of events (beyond what was able to be discerned from the Court file and the August Affidavit filed for the Minister) had been forthcoming from the applicant or those who represented him. The effect of this is simply that, for context, it would have been apparent that the Court was hearing, for the first time, the background and context to the matters which were said to ground that adjournment application and which might be relevant to the discretion the Court was being asked to exercise.
4. It is not unreasonable to include within the knowledge of the informed lay observer that, as distinct from the question of adjournment, at final hearing the Court would consider the decision the Immigration Assessment Authority (Authority) is affected by jurisdictional error, which is to be determined by reference to the current state of the law and the unique facts, circumstances and materials which led to the making of that decision by the Authority, and not by reference to interlocutory matters, questions of practice and procedure or the identity of the applicant's representatives: see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CYN17) at [40] per Kiefel CJ and Gageler J (as his Honour then was).
5. Relevant to the interlocutory event would be the very obvious knowledge that there were, as Counsel for the Minister submitted yesterday, admitted failures by the applicant and his representatives, some of which did not reveal themselves until during the course of exchange between the Court and Counsel for the applicant. For this reason, among many others, Adacot & Sowle is readily distinguishable from the instant case.
6. I am also satisfied that the informed lay observer would be aware that judges in general are well placed, if not the best placed, to make observations about trends within the jurisdictions in which they frequently sit, and in relation to the practice and procedure of their own courts, as part of undertaking their case management duties.
7. Contextually, the informed lay observer would also be aware that it is not uncommon for Judges of this Court (and of the Federal Court) to record the conduct of practitioners in migration proceedings (be they representing applicants or the Minister) in reasons for judgment, where that conduct is relevant to aspects of practice and procedure, including so that any patterns of recidivism can be detected by other judges in future. The judgments in ALA15 (supra) at [53] to [68] and CVDQ (supra) at [2] to [18] are but two of a myriad of examples, and were relevantly already cited in the adjournment judgment.[7] Imputing this knowledge does not offend the principle in Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 (Webb & Hay) at 73, cited with approval in CNY17 per Nettle and Gordon JJ at [58], that the lay observer would not have a detailed knowledge of the character or ability of a specific judge.[8]
8. Some exchanges between the Bench and Counsel for the applicant during the adjournment application, and matters which were recorded in the subsequent adjournment judgment were, undoubtedly, robust.
9. However, by reference to the authorities including those cited above, robust, frank and even colourful[9] exchanges between Bench and Bar are not unacceptable much less do they, in and of themselves, give rise to an apprehension that the judge might not bring an impartial mind to the ultimate and separate question to be decided. Nor, in the specific circumstances and relevant context of the 2 September 2025 hearing event, do those robust exchanges meet the requisite test.
10. It is unnecessary to assess line-by-line each of the allegations in the recusal submissions. I have read and considered them all. However, certain of them warrant addressing in summary.
11. Firstly, to the extent there are allegations the Court took issue with the title of the employed solicitor or their capacity to supervise lawyers, when taken in proper context, and by reference to the transcript, I am not satisfied that a hypothetical, fair-minded lay observer might reasonably think the matters alleged were even available as being imputed to the Court from that exchange, much less that the Court might hold such views in respect of applicant representatives in migration proceedings as a group.
12. Next, the experience/seniority of the employed solicitor might have been relevant to an assessment of why she had approached the question of adjournment in the way she did. Counsel's response, when asked what the title meant, was seemingly an approximation when he responded (anonymisation and emphasis added):

That is somebody who is probably - she - well, [NAME] manages junior solicitors as well as being a litigation solicitor. As far as I understand it, she is really the main litigation solicitor...

and the Court was not left with any clearer understanding as to what the particular title denoted, said as much at the time, and was unable to consider it (one way or another) as a factor in the adjournment application.

1. Contextually, these allegations are not borne out factually. When read properly in context of the exchange at the hearing, I accept the Minister's submission that the Court was making a broader point about the supervision and training, not of solicitors at the firm who represent the applicant, but of junior solicitors generally in the migration jurisdiction, including (said expressly) those who represent the Minister. As against the relevant context set out at [35] above, the Minister correctly submits the Court was simply making a point concerning the way in which solicitors are trained to appear in court and to engage properly with the practice and procedures of the Court. The Minister submitted that this was not an unfair or inappropriate observation to make, having regard to the aforementioned accepted failures in the present case of the applicant's solicitors. I agree.
2. To the extent it is now said that the Court compared the employed solicitor to practitioners who behave in any way they see fit "because somehow migration is some specialty area of practice which does not require a person to adhere to their professional obligations or in fact their duties to the court", I am not satisfied that comparison is made out at a factual level by reference to the transcript. For the applicant this was said to be "at the very least, hyperbolic". Having regard to the observations of this and other courts including those set out at [35] above, that submission (and in particular the description of this Court having engaged in hyperbole), that is not borne out.
3. To the extent that Counsel was asked a question on 2 September 2025 about the merits of taking cases as the last minute, which has been selectively interpreted as being a finding that the applicant's solicitors should not have taken on the applicant's case at all, I accept the Minister's submissions that this is not a fair characterisation of the statement at hearing by reference to whether a fair minded lay observer would apprehend as much from the relevant exchanges. Nor am I satisfied that any logical connection between the exchanges and a feared deviation from a course of deciding the ultimate judicial review application, has been established.
4. In respect of the contention at [24] of the recusal submissions that my alleged "attack on the deleterious conduct of the practitioners, but in particular, those who represent the applicants might cause apprehended bias against applicant lawyers", I accept the Minister's earlier submission that this characterisation goes too far in its interpretation of what was actually said. I am not satisfied that what was in fact said might cause the informed lay observer to conclude as the applicant opines. Rather, their information would include the matters already set out at [35] above. There is force to the submission made for the Minister (in line with the Thomas text cited above at [16]) that is for the lawyers to take such criticism on board, rather than to too hastily conclude or allege that a judge might take a view against the substantive case of the particular party they represent.
5. Next, the Court is alleged to have sarcastically thanked Counsel for the certain submissions. This allegation, inter alia, makes contentions in respect of alleged tone. Those assertions are clearly an opinion, though of whom, is unclear. The Affidavit referred to [7] above does nothing more than annexe a transcript. As such there is no evidence to support the assertions.
6. It is also contended that the Court said that the submissions would be recorded "to teach the applicant's solicitor a lesson so that "this will never happen again"[10]. This is alleged to have been derisive towards Counsel and to indicate that the Court held Counsel in low esteem. The informed lay observer would be aware that what is attributed to the Court and highlighted in above, about teaching the applicant's solicitor a lesson was not said, either at hearing nor in the adjournment judgment.
7. What was in fact said simply reflected the matters discussed at [35], being a common enough practice of judges, but not punitive. In respect of this allegation at [25] of the recusal submission, the Minister says that in context, particularly when the Court was raising concerns arising from previous judgments (and which had been pre-emptively been brought to the attention of the parties) the informed lay observer would not consider it inappropriate for the exchanges to occur, nor might those exchanges cause them to think that the Court might not bring an impartial mind at final hearing.
8. To the extent that the applicant also alleges that the informed lay observer may reasonably think that the Court has an "extremely low opinion"[11] of the applicant's legal representatives then, having regard to the facts and circumstances of this case, including that the acknowledgement of wrong-doing by the employed solicitor such as was conveyed by Counsel for the applicant, I am not satisfied that such an interpretation of the transcript is available. However, nor am I satisfied that even if it were, an informed lay observer might reasonably think that the exchanges upon which reliance is placed by the applicant, might cause the Court to not bring an impartial mind to the resolution of the applicant's judicial review proceeding, on the basis that the Court would not take seriously the submissions and case prepared by said lawyers. In this regard, knowledge of the training, tradition and oath of a professional judge which requires that irrelevant, immaterial and the prejudicial matters be discarded, would be a relevant factor to the understanding of the hypothetical fair minded observer (see [22] above).
9. Once considered in context, I am satisfied the requisite logical connection is not established in respect of any of the applicant's allegations.

1. Given the manifold particulars advanced for the applicant, I also remind myself of the principle summarised at [77] of Dunstan v Orr (supra per Wigney J) and have also considered whether (when looked at cumulatively) the exchanges upon which the applicant places reliance might cause the requisite hypothetical fair-minded lay observer to perceive that I might decide the applicant's application for judicial review, other than on its merits. I am of the view that they would not.
2. It has been held that Judges should resist being driven from their courts by the conduct or assertion of parties, including allegations of actual or imputed bias: see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674 at 689. The applicant and/or his representatives are entitled to their views, but I find that the matters alleged in support of the recusal application do not meet the prescribed test such that they logically might be considered to lead me to decide the substantive judicial review application other than on its legal and factual merits.
3. The recusal application filed on 9 September 2025 must therefore be dismissed.

1. When I listed the proceedings for hearing on 22 September 2025, I did so on the basis that they could be heard by me in short compass. A proceeding in which I am part-heard and which is also listed at 10:15am on 22 September 2025, was adjourned in order to enable it to resolve in the interim. It has not.
2. For the foregoing reasons I am satisfied there is no basis upon which I could not properly preside over the final hearing in this matter by reference to the recusal application. Conversely, for me to be the Judge to hear the matter, in circumstances where for practical reasons I am unlikely to be able to do so on Monday, is also by no means essential. I am not part-heard in the instant case in the sense that term is to be properly understood, such that it would be necessary for me to preside over its final hearing: see Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G 1 at [35(f)] and the cases cited therein.
3. Retaining this matter in my docket simply so that it could be I who hears it, but at a later date, would be inconsistent with the one of the bases upon which the adjournment was granted, namely that it could be heard swiftly. To retain it only to cause further delay would not accord with the principles of case management which were applied in the adjournment judgment, particularly when it can be entrusted to an available Judge, applying the ordinary procedures and practice of the Court.[12]
4. Accordingly, in order to ensure that these proceedings are not further delayed, arrangements will be made for the hearing fixture on 22 September 2025 to proceed before the Sydney General Federal Law duty Judge who (by definition) will be available for such a purpose. The final hearing can proceed before the duty Judge by Microsoft Teams, as was already arranged. My chambers will make the link available to the parties and the duty Judge. To avoid confusion in respect of allocated Court rooms on Monday, I will also grant leave to the Minister's representatives to appear remotely.
5. It is appropriate that costs of the recusal application be reserved. That is because while my preliminary view is that the applicant has been unsuccessful in the recusal application, which would tend to a conclusion that the Minister should have his costs following that interlocutory event, the practical effect of it is not yet known. If the applicant is otherwise successful in his judicial review application, there may be scope for a set-off of those costs against any costs order made in the applicant's favour. Alternatively, it may simply be that they will fall as costs in the cause and might be subsumed within an amount the Minister might seek if the applicant is otherwise unsuccessful.
6. It is appropriate therefore that costs of the recusal application be reserved to be determined by the Judge at conclusion of the proceedings. I will so order.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] The hearing date and time had had not changed

[2] Thomas, Judicial Ethics in Australia, 3rd ed, 2009, p 25 at [4.7]

[3] Cited for example in BOX16 v Minister for Immigration & Anor [2018] FCCA 2910 per Judge Dowdy and JVR24 v Trustee for Sydney Catholic Schools Trust (No 2) [2024] FedCFamC2G 1220 per Judge Manousaridis and (earlier volume) in Ebner (supra)

[4] See also recusal submissions at [8] citing on Heywood per Lonergan at [134]

[5] See CNY17 per Nettle and Gordon JJ at [58] citing Webb & Hay at 73

[6] See also Michael Wilson (supra) at [68]

[7] See also BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897 per Lee J, CYA22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1489 per Judge Marquard at [57] and Marasol Pty Ltd v Philips [2025] FCA 945 per Derrington J at [15] in the context of litigation in general

[8] CNY17 (supra) per Nettle and Gordon JJ at [58] citing Webb & Hay at 73

[9] Asden (supra) per Reeves J at [10]

[10] Recusal submissions at [25], emphasis added

[11] Recusal submissions at [19] to [20]

[12] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 49 per Mason J (as his Honour then was), Murphy, Brennan, Deane and Dawson JJ