Wright v Administrative Review Tribunal [2025] FCA 1258

1. The facts material to the stay application are contained in two affidavits of Damien Gregory Bourke filed by the Applicant on 8 October 2025 (Bourke Affidavits). They are not relevantly in dispute.
2. The proceeding is an application for a review of a "reviewable objection decision" under s 14ZZK of the Taxation Administration Act 1953 (Cth) in respect of which the Applicant bears the onus of proof (review application). The review application was listed for nine days before the Senior Member, commencing on 29 September 2025.
3. The Applicant made two recusal applications before the Senior Member. The first, made on 8 September 2025 (first recusal application), was refused by the Senior Member on 22 September 2025: PJFX v Commissioner of Taxation (Practice and procedure) [2025] ARTA 1871 (first recusal decision). The second, made on 3 October 2025 (second recusal application), was refused by the Senior Member on 7 October 2025: PJFX v Commissioner of Taxation (Practice and procedure No. 2) (second recusal decision). These reasons assume that the reader is familiar with both recusal decisions.
4. On 7 October 2025, the Applicant's solicitor wrote to the Registrar of the Tribunal. The letter attached the recusal decisions, the material relied upon in support of the recusal applications, and the transcript of the recusal applications. The letter requested that the President give consideration to reconstitution of the Tribunal pursuant to s 44 or s 46 of the Administrative Review Tribunal Act 2024 (Cth) "in either the interests of justice or on the basis of apprehended bias".
5. The Registrar responded in writing the same day, stating:

The President has decided not to exercise the powers under section 44 or section 46. He is of the view that, as your client has made 2 recusal applications to [the] Senior Member ...which have been dealt with in detailed written reasons, he should not reconsider those applications. If your client is dissatisfied with the decisions on the recusal applications, it should consider the legal options that may be available to it.

1. The originating application was lodged later that day and accepted for filing on 8 October 2025.

1. The Federal Court has jurisdiction with respect to the originating application under s 39B(1) of the Judiciary Act because the relief sought includes a writ of prohibition against the Senior Member who is an "officer of the Commonwealth" within the meaning of that section: Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; (2000) 64 ALD 325 at [21] to [22] (von Doussa, O'Loughlin and Mansfield JJ). There is, or may be, a dispute as to whether s 39B(1A)(c) of the Judiciary Act is engaged, but that need not be resolved for the purposes of the stay application.

1. The principles relevant to the stay application are not in dispute and were helpfully summarised by Katzmann J in Woodside Energy Limited v Australian Workers Union [2022] FCA 1391. They relevantly include the following:

(a) The Court has an implied jurisdiction to grant a stay of proceedings to protect the subject matter of litigation before it: Woodside Energy at [30] and [34], citing Cabal v United Mexican States [2001] HCA 42; (2001) 180 ALR 593 at [15] (Kirby J); and Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612 at 618 to 619 (Wilson and Dawson JJ);

(b) The Court will only grant a stay of proceedings when its supervisory jurisdiction is involved, where there are shown to be "exceptional circumstances": Woodside Energy at [30], citing Technical and Further Education Commission v Pykett (No. 1) [2014] FCA 727 at [9] and [10] (Perram J); see also, Re Australian Industrial Relations Commission and CFMEU; Ex parte Hail Creek Coal Pty Ltd [2003] FCAFC 322 at [2] (Lee, Goldberg and Weinberg JJ) and Energy Australia Yallourn Pty Ltd v CFMEU [2013] FCA 360 at [33] to [38] (Murphy J); see also, Woodside Energy at [36], citing Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1981) 34 ALR 208 at 212 (Mason J) and at [40], citing Re Australian Nursing Federation; Ex Parte State of Victoria [1993] HCA 8; (1993) 112 ALR 117 at 185 (McHugh J); and

(c) A "strong case" will need to be shown: Woodside Energy at [32], citing Yallourn at [34].

1. Justice Katzmann identified as applicable in this Court the approach to a stay of proceedings taken by Bryson JA in Newcrest Mining v Industrial Relations Commission of New South Wales [2005] NSWCA 85; (2005) 139 IR 72 at [5] (Woodside Energy at [40] to [44]). Justice Bryson there outlined:

... The power to order a stay is discretionary and such an intervention should not take place lightly; the outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be clearly shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue, and that the outcome will be so difficult to remedy or otherwise so adverse and severe in its impact that interlocutory intervention ... Questions of convenience are relevant, but not, in my view, simply as the balance of convenience: the test is a test of necessity and is not satisfied simply by assessing the relative convenience and harm for one side and the other ...

(Emphasis added).

1. Where apprehended bias is demonstrated it constitutes jurisdictional error being a breach of the requirements of procedural fairness: Woodside Energy at [46], citing CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [54] (Nettle and Gordon JJ). It is a "standard condition" of the conferral of statutory decision-making authority that a decision-maker be free from actual or apprehended bias: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ). As such, it is not necessary in establishing jurisdictional error, to demonstrate materiality. That is to say, that if the breach did not occur, there is a realistic possibility that the outcome could have been different: Woodside Energy at [47], citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4] and [45] (Bell, Gageler and Keane JJ).
2. The test of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability": Ebner at [7]; see also, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [37] (Kiefel CJ and Gageler J).
3. The question is to be answered having regard to "the legal, statutory and factual contexts in which the decision is made": Woodside Energy at [48], citing Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20] (Kiefel, Bell, Keane and Nettle JJ). The hypothetical observer is taken to know the nature of the decision, the context in which it is made and the circumstances leading to it: Isbester at [23].
4. In QYFM at [38], Kiefel CJ and Gageler J observed that:

Application of the criterion was identified in Ebner, and has been reiterated, logically to entail (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

(Footnotes omitted)

1. Before the Senior Member, the Applicant identified 10 "factors" across the two recusal applications that individually and cumulatively founded the claim of apprehended bias. Some of those factors factually overlap. On the stay application, the Applicant relies upon (and largely reiterates) her written submissions before the Tribunal with respect to those factors. The supplementary submission addresses an additional feature of one of those "factors" being the Senior Member's prior professional association with the Commissioner. As appears from the reasons which follow, certain of the factors upon which the Applicant relies were not the subject of detailed submissions before me.

1. The prior professional association of the Senior Member with the Commissioner is the principal "factor" upon which the Applicant relies to contend that there exists a reasonable apprehension of bias.

1. The facts relevant to that factor may be summarised as follows.

(a) The Senior Member has a prior professional association with the Commissioner by reason of her having been a Senior Lawyer with the Australian Government Solicitor (AGS) (Director, AGS Brisbane, National Tax Disputes Lead). This matter was raised in the first recusal application and said to "give rise to a 'logical connection' between that association and a feared departure from impartiality" (emphasis in original): cf, Seeto v Uber Australia Pty Ltd [2025] FCA 1032 at [10] to [14] (Shariff J).

(b) In the first recusal decision, the Senior Member noted that her "work history is a matter of public record" (at [69]), before stating (at [74]):

I am confident in the view I formed when this matter was assigned to me that I have had no previous involvement with matters relating to the Applicant or those connected with her and that there is nothing that would connect me to her case such that I should not hear it. The Respondent is correct to observe that I have not worked at AGS since end of August 2022 but that is not the point. In the circumstances, there is a complete absence of any evidence to suggest I have had some prior connection with this case or the Applicant or some connection or contact which would operate to mean that I should recuse myself or raise the matter with the parties. In this regard, I adopt the reasoning of Kennett J in ACZ20, that my prior professional history of working for the Commonwealth should not of itself preclude me from hearing this matter.

(c) On 24 September 2025, following the first recusal decision, the Applicant's solicitor wrote to the Registrar asking that "the Tribunal disclose matters where the Senior Member acted on behalf of the Commissioner against taxpayers in similar matters to that of the Applicant" (24 September Letter). Annexed to the 24 September Letter were three schedules of cases "where the AGS acted for the Commissioner". Of the 106 cases identified in the schedule, six were identified as matters where the Senior Member acted for the Commissioner or the Deputy Commissioner. Beyond citing the cases in which the Senior Member had acted, the 24 September Letter did not identify any features of those matters which gave rise to a reasonable apprehension of bias: cf, Victorian Legal Services Board v Kuksal, in the matter of Kuksal [2025] FCA 508 at [15] (Bennett J) and Seeto at [12] to [13]. The Registrar did not respond to the 24 September Letter.

(d) On the first day of the hearing of the review application, the Applicant tendered the 24 September Letter, stating that the Applicant was "reserving [her] position in all respects". The second recusal application was made on the third day of the hearing (3 October 2025). The Applicant's written submissions in support of the second recusal application referred to the 24 September Letter, stating:

The Applicant has sought clarification from the Senior Member to no avail. "It is logical, and reasonable that a fair-minded lay observer, with a broad knowledge of the material objective facts ... might apprehend ..." that the Senior Member 'might not bring an impartial mind to the matter' based on her historical associations.'

(e) At the hearing of the second recusal application, there was the following exchange between the Senior Member and counsel for the Applicant with respect to the 24 September Letter:

SENIOR MEMBER: So I note that you note in the application you've received no response from me, but that letter was to the Registrar of the Tribunal.

DR SCHULTE: Well if that's the basis upon which there's no answer, then that's what we understand.

SENIOR MEMBER: I can't speak - yes, I can't speak to the Registrar, you'll appreciate that. The Registrar speaks for himself. So what you say is different is that you've written a letter and you haven't had a response to it.

DR SCHULTE: That's right.

(Emphasis added)

SENIOR MEMBER: But you've drawn to my attention a piece of correspondence that was sent to another person where you've sought a response from that person. Is there a suggestion that any obligation arises on my part to respond to correspondence that's directed to another person?

DR SCHULTE: No.

SENIOR MEMBER: No. Thank you.

DR SCHULTE: Senior member, if that's the view you take, thank you.

(Emphasis added)

(g) In the second recusal decision, the Senior Member found with respect to the 24 September Letter (at [39] and [40]):

The allegation can be addressed briefly. Leaving aside the question whether it does comprise a fresh ground, the correspondence was addressed to the Principal Registrar of the Tribunal. It requests that the Tribunal provide information to the Applicant. It is incorrect to suggest that I could or should respond to correspondence directed to the Principal Registrar whose role is established under s 225 of the Tribunal Act and is a duly appointed office holder.

In the circumstances, I cannot find any basis for the assertion that I have somehow failed to respond to the correspondence. I cannot accept that in such circumstances, a fair-minded lay observer might apprehend that I might not bring an impartial mind to this proceeding on the basis that the Applicant is awaiting a response to correspondence from the Principal Registrar.

1. The Applicant contends that "irrespective of whether" the Senior Member was required to respond to the 24 September Letter, there can be "no doubt" that the Applicant was "asking [her] to disclose her prior association with the Commissioner". This, it is said, gave rise to a duty of disclosure and the failure of the Senior Member to provide that disclosure founds a reasonable apprehension of bias.
2. That submission cannot sensibly be sustained. A prior professional relationship between a lawyer and a client, even a long and proximate one, does not generally justify a reasonable apprehension of bias: cf, Victorian Legal Services at [15], citing British American Tobacco Australia Ltd v Peter Gordon [2007] NSWSC 109 at [85] (Brereton J), citing Re Polites; Ex parte The Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31; (1991) 173 CLR 78; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; and Aussie Airlines v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215.
3. The Senior Member squarely dealt with her prior professional association with the Commissioner in the first recusal decision at [74]. There is nothing in the 24 September Letter that followed which "suggest[ed] the possibility" that the Senior Member may not be impartial, such that a duty of disclosure arose: cf, Aussie Airlines at 221 (Merkel J), citing Najjar v Haines (1991) 25 NSWLR 224 at 224 (Clarke JA). Indeed, counsel for the Applicant explicitly acknowledged as much in the direct exchange with the Senior Member to which I have referred above.
4. Assessed in that context, there is no cogent and rational link between the Senior Member not responding to the 24 September Letter and an apprehended deviation from the Senior Member deciding the proceeding other than on its legal and factual merits: cf, QYFM at [38]. It follows, that I am not persuaded that the Applicant has a strong case that a fair-minded lay observer might reasonably apprehend from the Senior Member's prior professional association and the absence of a response to the 24 September Letter, that she might not bring an impartial mind to the resolution of the review application.

1. The next two factors (which factually overlap) relate to an amended "notice of objection" to be filed by the Applicant in the review application. It is uncontroversial that the Applicant required the consent of the Commissioner or leave of the Tribunal to file the amended notice of objection.
2. On 18 August 2025, the Applicant provided a copy of its draft amended notice of objection to the Commissioner. That draft amended notice of objection is not in evidence before me. The evidence does, however, reveal that the Commissioner objected to the draft on the basis of "form not substance", describing it as:

... an 18-page document that contained strike-outs, markups and highlighted text. Of which the Applicant concedes the amendments sought amount to 4 pages and the bulk of the amendments (concerning penalties) were filed in accordance with the previous order.

1. On 21 August 2025, there was a directions hearing before the Senior Member. During the course of the directions hearing, counsel for the Commissioner handed up an alternative draft proposed further objection. There then occurred the following exchange:

SENIOR MEMBER: Well, what I'll say just looking at what you've done, Mr. Hanna, is exactly the process I went through this morning, anticipating that there might be a problem and went through and attempted to extract from the amended document a distilled version of the amending grounds so that we could get past the issue of form if that was an issue.

MR HANNA: Yes, thank you.

SENIOR MEMBER: Yes. So is it the case you've had a chance to discuss the wording with Dr Schulte.

MR HANNA: I haven't discussed it with Dr Schulte, and more than happy to, but we were just trying to distil the grounds into a distinct form.

SENIOR MEMBER: So yes, well, just to assist you - and look, it might be of assistance, I don't have any problem handing over my draft as well, if that's of assistance to the parties. It's similar but not the same to what Mr Hanna's proposing, and I'll come back to you, Dr Schulte. I'm not short-circuiting what you're about to say. So mine was more extensive than yours in an attempt to ensure that I picked up everything that the applicant might have concerns with. So I'm sharing it with the parties as a courtesy. I'm sure we can all work on this together. But that probably gives me enough to now hear from Dr Schulte, unless there's something else you want to add to that. All right. Back to you, Dr Schule, sorry to cut around you.

(Emphasis added)

1. The Senior Member then had the following exchange with counsel for the Applicant:

DR SCHULTE: Thank you. Can I just say that, firstly, the draft order that's proposed by the Commissioner is essentially, as I understand it, an extract from what appears (indistinct) of the proposed draft. So this is something that's actually contained in the proposed amended objection. I suppose the points that I would make is that of course the tribunal has a broad discretion in relation to new or amended grounds of objection, and it has to be aimed at, of course, preventing injustice and ensuring that there is the correct tax outcome. Essentially cases say that what's required is that there needs to be a balance of the interests of justice, timeliness, prejudice and the nature of the new grounds themselves. The document itself is not pretty. No two ways about it.

SENIOR MEMBER: Can I say I understand that everyone in this room on the applicant side has inherited that document - did not draft it.

DR SCHULTE: Can I also say that it - it's not pretty because it's already been amended and in respect of which leave was granted.

1. The Senior Member provided the parties with a "Draft Proposed Additional/Amended Grounds of Objection" she had prepared. That draft is not in evidence before me, but there is evidence that it contained the words:

To the extent any of these additional amended grounds conflict with the grounds originally stated by the Applicant in her grounds of objection dated 9 June 2022, these amended grounds prevail.

1. The Applicant contends that the "truncation" of her draft by the Senior Member indicates "potential prejudgment of the utility of the Applicant's case content and alignment with the [Commissioner]". It is further submitted that by providing her draft, the Senior Member descended "into the arena" with a "risk of anchoring to one party's framing and not being open to persuasion".
2. Those submissions cannot sensibly be sustained in light of the exchanges extracted above. Those exchanges make apparent that the steps taken by the Senior Member were not directed to the content of the Applicant's case. Rather, they were directed to getting "past the issue of form" that had been raised by the Commissioner as a basis for objecting to the draft amended notice of objection being filed.
3. For those same reasons, the mere fact that the Senior Member's draft was "similar but not the same" to that provided by the Commissioner, does not found a strong case that a fair-minded lay observer might reasonably apprehend the Senior Member had "descended into the arena" and might lack impartiality in deciding the review application. While they are not in evidence before me, it appears reasonably clear from the exchanges to which I have referred, that both alternative drafts were grounded in the document that the Applicant herself had prepared through her lawyers. The draft prepared by the Senior Member was, as she described it, attempting to pick up "everything that the Applicant might have concerns with" and shared as a "courtesy" to overcome a procedural objection as to form.
4. It is not clear on the evidence before me, whether the amended objection that was filed incorporated the words extracted above from the Senior Member's draft with which the Applicant is concerned. Irrespective, viewed in the context of what transpired at the directions hearing, I am not satisfied that the Applicant has a strong case that a fair-minded lay observer might reasonably apprehend from those words that the Senior Member might not bring an impartial mind to the resolution of the proceeding. I read those words as being directed to ensuring that there is a single document that frames the Applicant's grounds of objection, rather than precluding the Applicant from identifying in the amended document any grounds of objection she may seek to raise.
5. Given those matters, I am not persuaded that the Applicant has a strong case that this factor founds a reasonable apprehension of bias.

1. The next two factors (which again overlap) concern affidavits filed by the Applicant's solicitor in the Tribunal.

1. On 6 August 2025, the Applicant's solicitor attended a directions hearing by telephone. In advance, the Applicant filed what is variously characterised as an "affidavit" or a "statement" from him (First Bourke Statement). The First Bourke Statement is not in evidence before me. The Senior Member described its contents in the first recusal decision as follows:

... Mr Bourke's statement exhibited correspondence sent by Mr Bourke to 2 extended family members explaining the nature of her case and requesting that they give evidence on particular transactions in support of the Applicant in the proceeding. It also exhibited the responses from their lawyers declining to assist.

1. On the morning of the 6 August 2025 directions hearing, the Applicant's solicitor received an email from the Tribunal referring to the First Bourke Statement and advising:

... Noting that the Applicant has filed an affidavit [Statement], the Tribunal would draw the Applicant's attention to the expectation that the deponent of that affidavit would be present at the reading of their affidavit, unless excused from attendance by the opposing party.

1. At the directions hearing, the following exchange occurred with the Applicant's counsel regarding the First Bourke Statement:

SENIOR MEMBER: We've got where we've got to without having to read Mr Burke's affidavit, Dr Schulte, which I think is a good thing. And I don't think we need to read it unless you disagree?

DR SCHULTE: It's simply intended to explain the position that we're in and explain the reasons, for example, for why we've requested the subpoenas. And why we're also sought to amend the grounds of objection. I would have thought it provides some context, of course, to the application. Sorry, just bear with me a second. All I'm simply saying is that yes, it does give some context to what's gone on. It gives some colour and light to the background and why we are where we are.

SENIOR MEMBER: Yes, it certainly does that, including engagement with potential witnesses. I at the moment don't see a need to have it read, but if you insist on having it read, then we can read it. But maybe it's premature and it might be best to sit on that and you can reflect on whether it does need to be read if we continue to have an issue, for example, around the to the objection or the summons request.

DR SCHULTE: Thank you, Senior Member. That's the view taken, thank you.

(Emphasis added)

1. The Applicant submits that the Senior Member's comment, "it certainly does, including engagement with potential witnesses", as extracted above, suggests "a degree of impropriety about the Applicant's solicitor['s] interactions with witnesses before any evidence was heard".

1. In the first recusal decision, the Senior Member said of this exchange (at [51]):

My observation was made in the context of the Tribunal was asked to adjourn hearing dates, make directions permitting further evidence to be filed and issue summonses to third parties to give evidence and produce records. Mr Bourke's statement contained correspondence which otherwise would have on the contents been subject to a claim for legal professional privilege. I was considering these matters and whether Mr Bourke's statement needed to be read given the facts which seemed to suggest adjournment of the final hearing was inevitable.

(Emphasis added)

1. Neither the Senior Member's description of the context of the directions hearing nor the contents of the First Bourke Statement were put in issue before me.

1. Mr Bourke swore a further affidavit for the directions hearing on 21 August 2025 (Second Bourke Statement). During the course of that directions hearing, there occurred the following exchange between the Senior Member and the Applicant's counsel regarding the Second Bourke Statement:

DR SCHULTE: In terms of the material for today of a late affidavit that's 20 come through that just simply - - -

SENIOR MEMBER: To the tribunal.

DR SCHULTE: To the tribunal that provides exchanges of correspondence. It doesn't get any - it's not really much higher than that.

SENIOR MEMBER: Is that something I need to have in front of me today?

DR SCHULTE: It's an affidavit of Mr Burke [sic]. It essentially goes through and just explains - - -

SENIOR MEMBER: Where's Mr Burke [sic]?

DR SCHULTE: I beg your pardon?

SENIOR MEMBER: Where's Mr Burke [sic] if it's his affidavit?

DR SCHULTE: Sorry, I hadn't understood that.

SENIOR MEMBER: Anyway, all right. So I haven't seen it if it's just come through. We've had a fairly wild unruly morning at the tribunal, so there's a few urgent things happening. I'm not sure whether we will be able to pull that up. Is there a spare copy somewhere?

DR SCHULTE: Yes.

SENIOR MEMBER: Thank you.

DR SCHULTE: My apologies, Senior Member. I'm not familiar with having a witness.

SENIOR MEMBER: Well, I ask if someone's deposing to an affidavit, I'm sure it's unlikely that Mr Burke's [sic] going to be cross-examined on this affidavit, but I would have thought that the deponent would appear if there's an affidavit being read that they've deposed to. I guess it's just a matter of form. I'll short-circuit it by asking the respondent. Is there any intention - - -

MR HANNA: There's no intention to cross-examine.

SENIOR MEMBER: No. Thank you. All right. And the respondent, I presume, has seen this affidavit?

MR HANNA: Yes, we have.

MEMBER: Right. And is there any objection to any part of it?

MR HANNA: There's no objection.

SENIOR MEMBER: All right. And Dr Schulte, you're proposing to read the affidavit?

DR SCHULTE: Yes, thank you.

SENIOR MEMBER: Okay. All right. And do you want me to mark it as an exhibit?

DR SCHULTE: Yes, please.

1. In the first recusal decision, the Senior Member states (at [54]) - and it was not put in issue before me - that the First Bourke Statement and the Second Bourke Statement were "lodged in support of two contested applications made by the Applicant, both of which resulted in interlocutory hearings".

1. The Applicant contends that the Senior Member's remarks at the 6 August 2025 directions hearing regarding the First Bourke Statement, coupled with the "insistence" that Mr Bourke attend the 21 August 2025 directions hearing "presumably for cross-examination", is "indicative of premature distrust". The Applicant characterises this "insistence" as "an unusual procedural requirement which added to the pattern of strictures applied to the Applicant ... being relevant cumulatively to perception of apprehended bias".
2. In the context of a contested application, it is not an "unusual procedural requirement" that the deponent of an affidavit filed "late" be made available for cross-examination, unless not required by the opposing party. Further, understood in the context of the Senior Member's explanation, it is a substantial logical leap to read her agreement that the First Bourke Statement gives "colour and light" to "what's gone on", "including engagement with potential witnesses", as casting aspersions on the deponent.
3. The Senior Member's explanation makes clear that the basis of her comments about the necessity of reading the First Bourke Statement was that it contained material from third parties that could be the subject of a claim for legal professional privilege, and were unconnected to her earlier comment about the deponent's engagement with potential witnesses. Assessed in that way, I am not persuaded that the Applicant has a strong case that a fair-minded lay observer might reasonably apprehend from these factors that the Senior Member might have a "premature distrust" of the Applicant, or might decide the review application other than on its merits.

1. The next factor concerns a draft request for two summonses directed to two members of the Applicant's family.
2. The draft summonses required those individuals to attend to give evidence at the hearing of the review application and to produce certain categories of documents. The Applicant's solicitor deposes that the request was made in the context of those individuals' reluctance to give evidence and his view that it was prudent to obtain additional evidence from them, given that the Applicant bears the onus of proof in the review application.
3. At the directions hearing on 6 August 2025, the Senior Member had the following exchange with the parties:

SENIOR MEMBER: Before we turn to dates and things like that, I want to deal with the summons. I must admit what concerned me when the request for summons turned up on my virtual desk was that on my reading of the summons, the terms of the summons itself caused me to wonder whether it was effectively setting things up so that by production of documents, there was an answer to a question of fact that the tribunal has to determine. And perhaps I haven't said that very well. There's a presumption in the wording of the summons that would go to the summonsed parties that by producing documents, they're making out the characterisation of the transactions, potentially. That was my concern.

The Commissioner says on the current wording, he doesn't have a concern. And I appreciate the witnesses are proposed to be called as well. But my concern was there was nothing neutral about the language that was being used in the summons.

DR SCHULTE: Senior Member, would it be appropriate for us to review that language and perhaps suggest a different tone that would - we were conscious of trying to get the matter on and doing so in circumstances where these witnesses are necessary. And you'll have to forgive us if we haven't expressed it - - -

SENIOR MEMBER: I haven't attributed any intent to it, Dr Schulte. I'm just - - -

DR SCHULTE: Just, I'm - - -

SENIOR MEMBER: Is it one direction filed, and then I was wondering what the Commissioner's position would be on it. Mr Hanna, now that I've explained that is there anything the Commissioner wants to add on that?

MR HANNA: The Commissioner agrees to observations on that. Thank you, Senior Member.

SENIOR MEMBER: I think it should be a question of a revision, Dr Schulte, and some negotiation with the respondent. I'm not saying I want to prolong this, but these are important matters. And I appreciate you've got a difficulty in trying to identify documents for people to produce. But the thing that really concerned me was the wording of two summonses which I thought were in danger of doing the tribunal's job for it, effectively, because production of the documents would be tantamount to the - that was what concerned me when I read them.

(Emphasis added)

1. The original draft summons is not before me, although a copy as "marked up" by the Commissioner is. It appears from the track changes to that draft that the documents requested by the original draft summons included, amongst others, "bank statements or invoices showing the rent you paid".
2. The Applicant contends that in the absence of the Commissioner having raised a concern, the Senior Member's statement that there is "nothing neutral" in the draft summons indicates a "risk of perceived assistance to" the Commissioner. That submission cannot sensibly be sustained when those words are considered in the context of the entire exchange extracted above.
3. As the Senior Member there states, her particular concern was that the language in the original draft presumed the answer to the question of fact she had to decide on the review application if the documents were produced. That concern has more to do with the function of the Tribunal on the review application than either party's case. Indeed, there is no suggestion before me that the Senior Member sought the removal of categories of documents from the draft summons.
4. Given those matters, I am not persuaded that the Applicant has a strong case that there is a possibility (real and not remote) that a fair-minded lay observer might apprehend from this factor that the Senior Member was "assisting" the Commissioner and might decide the review application otherwise than on its merits.

1. The next factor relates to a direction issued by the Tribunal on 28 August 2025, following the production of the documents, the subject of the summons to which I have just referred. The direction stated as follows:

The respondent is to provide the applicant physical or digital copies of documents if the applicant is unable to inspect the documents while in prison or detention.

(Emphasis added)

1. The Applicant is not in prison or detention.
2. In the first recusal decision, the Senior Member gave the following explanation as to the circumstances in which the direction was published (at [40]):

The proposed timetable for access was settled and approved by me and then the final direction was issued by a Tribunal staff member on a Tribunal template for directions. It was subsequently identified that the Tribunal staff member incorporated the directions into the template normally used for directions in visa applications. Consequently, the published direction contained the following additional words (relevant to those matters) -

"The Respondent is to provide the Applicant with copies of the documents if the Applicant is unable to inspect the documents while in prison or detention."

1. The Applicant contends that the direction "is apt to convey" that the Senior Member considers that the Applicant may be in prison or detention, such that a fair-minded lay observer might reasonably apprehend that she might not bring an impartial mind to the resolution of the proceeding.
2. I accept that, considered in isolation, the direction suggests a misapprehension that the Applicant is in prison or detention. But the direction is not to be considered in isolation. It is to be considered in the context of the explanation provided by the Senior Member, as set out above: cf, Isbester at [20].
3. Assessed in that context, I am not persuaded that the Applicant has a strong case that a fair‑minded lay observer might reasonably apprehend from this factor that the Senior Member considered the Applicant to have criminal tendencies and might not bring an impartial mind to the review application. That is because the Senior Member's explanation in the first recusal decision makes clear that the inclusion of the impugned words was the result of an administrative error, and an administrative error on the part of someone other than the Senior Member. I am confirmed in this view by the language used in the direction, which refers not just to prison, but detention, which is a particular feature of those involved in migration cases before the Tribunal.

1. The next factor concerns the amended statement of facts, issues and contentions filed by the Commissioner on 8 September 2025 (RASFIC). It was contended in the written submissions on the first recusal application that, in light of the "global assertions" in the RASFIC about the "Applicant's honesty", the "Senior Member's case management interventions and remarks tend to mirror the Commissioner's scepticism".
2. The RASFIC is not in evidence before me. At the hearing of the stay application, the Applicant's counsel made a passing reference to an "amended SFIC", but beyond that this factor was not the subject of any detailed oral submissions.
3. The Senior Member said of this factor in the first recusal decision (at [61] and [62]):

This submission is confusing but seems to suggest that I sought to mirror contentions contained in the Respondent's ASFIC in my case management of the 2 interlocutory hearings (6 August 2025 and 21 August 2025).

The fatal flaw with this submission is that the Respondent's ASFIC was filed on 8 September 2025, after the interlocutory hearings took place. In such circumstances, I cannot accept it has merit.

1. On the evidence presently before the Court, I am not persuaded that the Applicant has a strong case with respect to this factor. That is because if, as the Senior Member states, the RASFIC was filed after the directions hearing, then there is no rational and logical connection between that pleading and her case management of the review application. That is to say, there is no possibility (real and not remote) that this factor gives rise to a reasonable apprehension of bias on the part of the Senior Member.

1. The next factor concerns evidence to be given at the hearing of the review application by a witness who is not a party to the proceeding (non-party witness). Again, this factor was not the subject of oral submissions on the stay application, but as I apprehend, it is pressed by the Applicant because she presses on the originating application each of the factors identified in the recusal applications.
2. The non-party witness is to be called by the Applicant in the review application. He has provided a statement and an affidavit (neither of which is in evidence before me) and is required for cross-examination at the hearing.
3. At the 6 August 2025 directions hearing, the evidence of the non-party witness was raised. The Senior Member said to the Applicant's counsel:

SENIOR MEMBER: You're there to protect the applicant's interests but you don't act for [non-party witness] and you don't act for the applicant's husband. And they have the opportunity in the intervening period to be thoughtful about what advice they need. I can see that perhaps the summons witnesses already have representation, and so their interests will be protect [sic]. But it's those two witness and particularly, the applicant's husband, that comes to my mind.

1. At the 21 August 2025 directions hearing, the Senior Member again raised with the parties the evidence to be given by the non-party witness:

SENIOR MEMBER: ... No. All right. that brings us to [non-party witness], but before we get to [non-party witness], can I tell you what's troubling me. Increasingly as I think about this matter, and it's the thing I alluded to at the end of the last hearing, and it's the question of separate representation.

So we've secured this room for the hearing, and we've done that partly to ensure ease for electronic demonstration of evidence, but also because we're conscious of separate representation and the need to accommodate separate representatives, so we wanted to make sure we had a room big enough to do that. I'm increasingly concerned about 'the husband's' [sic] position. And that's only been strengthened reading the material that's been filed recently, that I would be uncomfortable with him appearing and giving evidence in an environment where the team that's representing the applicant is also in any way assisting him. And that's because of the warnings I have to give and the issues coming out under cross-examination. So, I guess I'm seeking an update about him. And this leads into [non-party witness], because I wonder whether [non-party witness] might be in a similar position.

1. The Senior Member asked the Applicant's counsel whether his "client's interests align completely" with the non-party witness, to which counsel responded, "I'm not sure it could be said". There was then the following exchange:

DR SCHULTE: But I've got to say, I haven't really appreciated that there was any concerns in relation to [non-party witness].

SENIOR MEMBER: Well, I'm trying to look around the corners. The tribunal has to be seen to be running a fair hearing and in circumstances where the tribunal's on notice that people are coming to give evidence that will require warnings to be given, and in circumstances where witnesses are coming to give evidence, and the tribunal is aware that the only legal representation that is available to assist to prompt them about their rights is one where the interests - and this is no criticism, of course, of the applicant's legal representatives, but where they can't hope to have interests that are wholly aligned between their own client and those witnesses, I have a concern.

1. The Senior Member stated that she was raising these issues because "we are here deciding whether [the non-party witness] should attend in person". The Senior Member asked the Applicant's counsel whether the non-party witness appreciated that "he's going to be given a warning", to which the response was, "I don't know". The Commissioner's counsel then made submissions about the non-party witness, including that he was a "critical" witness.
2. The Senior Member then said:

SENIOR MEMBER: Yes, I do. That's the thing that's concerning me about this - is what is the best way to ensure that these witnesses are able to give evidence in a way that's helpful to the tribunal but also in circumstances, Dr Schulte, where - and again no criticism to you or those instructing you - they should not necessarily feel that they can rely on you, to put it bluntly.

You're here to act for the applicant. And I must admit, I'm unsurprised to hear that [non-party witness] is a critical witness or potentially a critical witness for the Commissioner. I'm not going to make any other comments about it, because I don't know what questions the Commissioner is going to ask.

I just apprehend I'm going to have to give warnings to each of them, and I also apprehend I'm going to have to say to them that they have the right to be represented. And as soon as I say that to them in the hearing, the risk is that one of them might say at that point, 'Well, in that case, I think I better go and get represented', and we're in the middle of a hearing. And I also think it's difficult to manage all of that and to be fair to them to allow them to have the best access to that representative if they're remote. So I wonder whether the first step in all of this is some form of direction that makes sure that all the witnesses are on notice that should they wish to do so, they have the right to apply to be separately represented as they give their evidence.

1. There followed, on 29 August 2025, a direction that the parties confer and the Applicant file proposed correspondence with a number of witnesses, including the non-party witness, and "advising them of the proposed arrangements should they wish to seek leave to be separately legally represented while giving evidence at the final hearing".
2. In the first recusal decision, the Senior Member said (at [96]):

The following provides relevant context to the directions which issued [on 29 August 2025]:

(a) the Applicant had already alerted the Tribunal to the fact that there was a distinct risk that either or both the Applicant and her husband may incriminate themselves in giving evidence;

(b) the Applicant had also alerted the Tribunal to the fact that both of the extended family members had engaged criminal legal representatives. The Tribunal was being asked to issue summonses requiring both to attend the Tribunal and give evidence; and

(c) the Tribunal was being asked to permit the [[the non-party witness]] to give evidence remotely. The Respondent told the Tribunal in opposing this request that his credibility was in issue.

1. The Applicant contended in the written submissions filed in the first recusal application that the "advance emphasis" by the Senior Member on "separate representation and self‑incrimination warnings for [the non-party witness] without [the] request of either party", gives "the appearance of anticipation of incriminating evidence and prejudgment of witness credibility".
2. I accept that, considered in isolation, the references to "separate representation" and "self‑incrimination warnings" suggest that the non-party witness may need to make a claim of privilege against self-incrimination. But I am not persuaded that, considered in context, those statements give rise to the appearance for which the Applicant contends. Rather, they can sensibly be understood to reflect the stated concerns by the Senior Member to ensure "a fair hearing and in circumstances where the Tribunal's on notice that people are coming to give evidence that will require warnings to be given", and the interests of those witnesses might not "wholly align" with those of the Applicant.
3. As such, I am not satisfied that the Applicant has a strong case that a fair-minded lay observer might reasonably apprehend from this factor that the Senior Member anticipated that the non‑party witness would give incriminating evidence or prejudge that evidence, or might otherwise not bring an impartial mind to deciding the review application.

1. The next factor relates to the "warning" given by the Senior Member to the Applicant as to privilege against self-incrimination. That warning was given by the Senior Member on the second day of the hearing and was raised on the second recusal application. The exchange was as follows:

SENIOR MEMBER: Yes. Before we start to, I might just say to you ...I understand that Dr Schulte has spoken to you about what we call the privilege against self-incrimination.

PJFX: Yes

SENIOR MEMBER: Yes. So, I'll just take you through that again briefly. So in giving your evidence this morning you have the right to elect not to answer the question that's been put to you. If you feel that answering it might tend to incriminate you. Should you take that election the tribunal has the right to draw inferences from your refusal to answer but it is a right that exists in the tribunal. Thank you.

(Emphasis added)

1. The Applicant proceeded to give evidence for the remainder of the day. Mr Bourke deposes that he did not become aware of the precise language used by the Senior Member until he reviewed the transcript. The following day, the Applicant's counsel raised the "warning" with the Senior Member, stating:

DR SCHULTE: ... what we are concerned with here is that there's - the warning has the tone of basically a threat or an inducement to answer questions when the right to claim self-incrimination exists.

1. Both parties made submissions and then the hearing was adjourned for a short period. When the hearing resumed, the Senior Member stated:

SENIOR MEMBER: ... Dr Schulte, I've had a look at the transcript, and I think it's important to concede that that is open. That's not something that I'll need you to make submissions to me on. I think there is an inference in there that, perhaps, the witness might have misapprehended from what was said. Having said that, the witness is legally represented, had previously had the warning, no objection was taken to the words that I used, she proceeded to give evidence for an entire day. So ... what I'm thinking needs to happen now... is that the applicant needs time to take instructions ...

... And we need to understand what it is that the applicant would consider needs to happen as an election, for example, the striking of that evidence, the need to recall the witness ...

1. In the event, the Senior Member made orders striking the evidence given by the Applicant from the record of the Tribunal, with that evidence to be heard on a date to be agreed by the parties and the Tribunal.
2. The Applicant contends that the warning gives rise to an apprehension that if the Applicant elects to claim privilege against self-incrimination, when she returns to give evidence, the Senior Member will draw an adverse inference against her.
3. I accept that, considered in isolation, the warning suggests a predisposition against a witness making a claim of privilege against self-incrimination. But again, the warning is not to be considered in isolation. Rather, it requires consideration of the context: Isbester at [20]. Materially, this includes the Senior Member freely conceding that it was "open" that the warning was in error and striking the Applicant's evidence from the record. Assessed in that context, I am not persuaded that the Applicant has a strong case that a fair-minded lay observer might reasonably apprehend from the warning that the Senior Member might draw an adverse inference if the Applicant makes a claim of privilege against self-incrimination when she returns to give evidence, or not bring an impartial mind to the resolution of the review application before her: cf, Ebner at [6] and [7]. That is because the Senior Member's concession, and the steps taken by her to remedy that error with the warning, sever any "logical connection between that factor and the apprehended deviation from deciding the question [before her] on its merits": cf, QYFM at [16].

1. The final factor identified by the Applicant is the cumulative effect of each of the factors identified above. In AZC20 v Secretary, Department of Home Affairs [2023] FCA 1252, Kennett J outlined that, "there is [no] reason in principle why a reasonable apprehension of bias cannot arise from two or more factors working together": at [41]. But as his Honour went on to observe, "such circumstances must be rare": at [41]. Justice Kennett went on to state that (at [44]):

In every case, the "factor" that is relied upon must be considered in its whole context. However, the context is relevant to the extent that it accentuates (or diminishes) the possible effect of that factor and not otherwise. Adding together two substantially discrete factors, each said to be capable of pointing the decision maker in a particular direction, does no more than establish a leaning in that direction.

(Emphasis added)

1. The principal factor upon which the Applicant relies is the Senior Member not responding to the 24 September Letter in light of her prior professional association with the Commissioner. That factor is not entirely factually unconnected from the other factors upon which the Applicant relies in the limited sense that the Commissioner is a party to the review application. But they are analytically distinct: cf, AZC20 at [45]. I am not persuaded on the evidence presently before the Court that the Applicant has a strong case that anything is added by the other factors that accentuates the principal factor upon which she relies. That is to say, I am not satisfied that the Applicant has a strong case that adding together each of the substantially discrete factors addressed above establishes a reasonable apprehension of bias on the part of the Senior Member.

1. Turning then to the question of "exceptional circumstances", the Applicant says that she will suffer "detriment or an untoward result" for which damages or other remedies would not be adequate compensation if the stay is not granted: cf, Woodside Energy at [33], citing Shop, Distributive and Allied Employees v National Retail Association [2011] FCA 1167 at [7] (Tracey J). That is because, the Applicant says, she will have lost a "fair opportunity to have her case heard by an impartial Tribunal".
2. The Applicant also points to the fact that the Tribunal is a "no costs" jurisdiction and says that while her solicitors are acting pro bono, they are likely to incur costs and disbursements and will incur time in a rehearing which cannot be recompensed if she succeeds on the originating application.
3. The Applicant also says that the "issue of justice" raised by the originating application is "so fundamental that it must outweigh" considerations of inconvenience to the Tribunal or the Commissioner: cf, Melsom v Forrest, Deputy President of the Administrative Appeals Tribunal (1997) 50 ALD 196 at 200 (R D Nicholson J).
4. In all, the Applicant submits that the following factors favour the grant of a stay:

(a) The inappropriateness of the originating application proceeding at the same time as the Tribunal proceeding.

(b) No evidence of any prejudice to the Commissioner or impact of the stay on the Commissioner's interests.

(c) Granting the stay would preserve the Applicant's rights without unduly compromising the Commissioner's position.

(d) The strong public interest in the integrity of the Tribunal's processes and the perception that justice is done. Conversely, the public interest in prompt tax adjudication under Part IVC of the Tax Administration Act, while important, does not outweigh the need for proceedings to be conducted without apprehended bias or unfairness.

1. I am not satisfied that there are exceptional circumstances which would warrant the grant of a stay in this case. Counsel for the Applicant placed considerable emphasis in oral submissions on what he described as his client's "legitimate concerns". It is apt to emphasise in this context that the claim for final relief by the Applicant includes a declaration that the Senior Member's constitution as the Tribunal and participation in the proceedings is attended with the appearance of a reasonable apprehension of bias: cf, Federal Court of Australia Act 1976 (Cth), s 21. The refusal of a stay will not preclude the Applicant from pursuing her right to obtain that relief in this Court.
2. The refusal of a stay is likely to have the consequence that the proceedings before the Senior Member will proceed. That is material because the relief sought by the originating application includes an order restraining the Senior Member from taking any further step in the proceeding. But I am not satisfied that this consequence is "so adverse and severe that the attainment of justice requires interlocutory intervention": cf, Newcrest at [5]. That is because the right to obtain declaratory relief is preserved. And as counsel for the Applicant frankly conceded at the hearing of the stay application, "things ... moved very quickly" with respect to the filing of the originating application, such that there are "any number of consequential things" that are not presently, but might ultimately, be sought by the Applicant in terms of final relief should she be successful in obtaining a declaration of apprehended bias: cf, Federal Court Act, s 23. Given those matters, in my view, the public interest favours permitting the Tribunal to undertake its statutory function under the Administrative Review Tribunal Act to hear and decide the review application.
3. I accept, as the Applicant states, that her solicitors may incur costs and disbursements and will expend time with respect to the review application that may not be able to be recovered should she succeed on the originating application. But I am not persuaded that this consequence is "so severe and adverse in its impact" that the stay application should be granted notwithstanding that there has been no opportunity for full consideration of the originating application: cf, Newcrest at [5]. That is particularly so given that the Applicant is not, herself, incurring any costs given that her lawyers are acting pro bono.

1. For all the above reasons, the interlocutory application filed by the Applicant on 8 October 2025 for a stay of the Tribunal proceeding 2023/5307 is refused. I will hear the parties as to costs.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.