Federal Court of Australia

FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 549

ORDERS

THE COURT ORDERS THAT:

1.    The time by which the applicants have to file an application for leave to appeal the interlocutory orders made by Judge Given of the Federal Circuit and Family Court (Division 2) of Australia on 18 August 2023, be extended to 12 September 2023.

2.    The application for leave to appeal be dismissed.

3.    The first applicant is to pay the first respondent’s costs, as taxed or agreed.

4.    These orders be entered forthwith.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The applicants seek leave to appeal and an associated extension of time to do so against orders made by the primary judge dismissing two interlocutory applications filed by the applicants. The interlocutory applications were filed after the hearing of a judicial review application before the primary judge, seeking (a) orders that the primary judge recuse herself and (b) leave to reopen their case after judgment had been reserved. The first applicant is the mother of the second applicant.

2    The applicants had been denied Protection (Class XA) visas (protection visas) by a delegate of the first respondent (Minister) and had unsuccessfully challenged that decision in the Administrative Appeals Tribunal (Tribunal), the second respondent. The Tribunal has filed a submitting notice in this proceeding.

3    The applicants sought judicial review of the delegate’s decision in the Federal Circuit Court of Australia, as it was then known.

4    The applicants require leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) because the orders made by the primary judge were interlocutory. The applicants also require an extension of time under r 35.13 of the Federal Court Rules 2011 (Cth) (Rules) to file the application for leave to appeal as it was not filed within 14 days of the primary judge’s orders.

5    In summary, the applicants contend that leave to appeal should be granted because (a) the primary judge was wrong to refuse to recuse herself from the proceedings on the ground of reasonable apprehension of bias, and (b) the primary judge was wrong to refuse to allow the applicants to reopen their case.

6    It follows that the issue, and the only issue, that falls for determination on this application for leave to appeal is whether the primary judge’s reasons for making the interlocutory orders are attended with sufficient doubt and potential prejudice to the applicants to justify a grant of leave to permit the applicants to advance the grounds in the draft notice of appeal.

7    The applicants relied on numerous affidavits affirmed by the first applicant in the period between 5 September 2023 and 3 April 2024, which largely contained submissions or simply annexed various documents.

8    The applicants made numerous written and oral submissions in support of their application for leave to appeal, including submissions filed on 2 April 2024 and submissions contained in the affidavits outlined above.

9    Following the hearing on 5 April 2024, and after I had reserved my judgment, the first applicant sought to file further additional material in the form of affidavits and submissions.

10    With the consent of the Minister, I accepted the additional affidavits and submissions provided to the Court between 5 April 2024 and 2 May 2024 for filing.

11    The applicants continued to seek to file further additional material. With respect to each further additional document, the Court wrote to the Minister’s solicitors to ascertain its position. The Minister’s solicitors responded advising that they were seeking instructions.

12    On 11 May 2024, my Associate received an email from the first applicant, attaching a document which appeared to be an interlocutory application seeking “leave to lodge additional documents in this proceeding without obtaining permission from the Minister of Immigration or the other party”.

13    On 16 May 2024, I heard the interlocutory application and granted leave to the applicants to file the further additional submissions and affidavit evidence provided to the Court in the period between 26 April 2024 and 14 May 2024. The Minister opposed the application for leave to file the further additional submissions and affidavit evidence on the basis that it could not conceivably be relevant to the matters the Court has to address but acknowledged the Minister would not be prejudiced if leave were granted. Given the first applicant is a litigant in person and her deeply expressed concern that the Court must have regard to all the material she was seeking to rely upon, I was persuaded that the better course was to accept all the material for filing and to then consider its potential relevance to the issues to be determined on this appeal.

14    The vast majority of the submissions made and the evidence sought to be relied upon by the applicants could not rationally be relevant to the relief that they seek to pursue in the draft notice of appeal. These matters included, but are not limited to, alleged corruption in the Court system and the New South Wales government, alleged harassment and exclusion the applicants have experienced in Australia, submissions as to the conduct and attire of counsel for the Minister at the judicial review hearing, the standards of justice enshrined in Australian law and Judaism, the fiscal impact of migration, theories of corruption and harm to the soul, the activities of Abe Shaffron, the involvement of the Royal Australian Navy in the Arctic convoys in the Second World War, the history of the crime of “treason” and examples of “dishonour” in the navies of various countries during the First and Second World Wars, the treatment of people as liabilities in the pursuit of corporate profits in the Australian mining industry, biblical examples of the treatment of women, and requested reforms such as a formal review of the circumstances in which Rear Admiral Peter Sinclair AC, retired as the Governor of New South Wales in March 1996.

15    On 21 May 2024, the first applicant sought to file further submissions. Consistent with the earlier position at the interlocutory hearing on 16 May 2024, I granted leave for these submissions to be accepted for filing. In summary, the submissions sought to challenge the credentials of the Minister and the Tribunal “to deny our asylum case based on the conclusion that Russia was a democratic country”.

16    On 22 May 2024, the first applicant sought to file yet another additional affidavit, which annexed the submissions referred to above, as well as listing the “numerous conflicts and wars” that Australia has participated in throughout its history, descriptions of the Privacy Act 1988 (Cth) and other Australian legislation, annexing various communications between the first applicant and the Australian Government Solicitor (on its face relating to an application under the Freedom of Information Act 1982 (Cth)), and submissions as to why the Melbourne Cup is important to Australians. Again, consistent with the earlier position taken at the interlocutory hearing on 16 May 2024, this affidavit was accepted for filing on 23 May 2024.

17    The applicants’ application for leave to appeal is opposed by the Minister. The Minister adopts the primary judge’s reasons on the recusal application and the application to reopen.

18    For the reasons that follow, I am satisfied that it is appropriate in the circumstances that an extension of time to file the application for leave to appeal is to be granted but the application is otherwise to be dismissed and the first applicant is to pay the costs of the respondent.

B.    Preliminary issue – the second applicant

19    The position of the second applicant with respect to the prosecution of the application for leave to appeal was not readily apparent.

20    On 13 September 2023, the second applicant sent an email to the primary judge’s Associate in which she stated that she was not “consulted or notified in advance of the application to apply for leave to appeal the interlocutory judgment … I do not wish to be included in this application to appeal”. The email was sent in response to an email from the primary judge’s Associate.

21    Later that day, the first applicant sent an email to the primary judge’s Associate, claiming that the second applicant did know of the appeal, and that the first applicant would represent both of the applicants as the second applicant “is mentally uncapable to go back in traumatic memories or be the subject of harassment and re traumatisation”.

22    The second applicant did not appear at the hearing of the application for leave to appeal. At the commencement of the hearing, the first applicant submitted orally that she had spoken to the second applicant earlier that morning and “she wrote me. She gave me her points, what she wants to present on the matter. So she part of the case”.

23    In the absence of any confirmation from the second applicant as to her position, I concluded that, in order to ensure that there was no inadvertent prejudice to her, she should remain as a party to the application for leave to appeal but that she should not be exposed to a costs order in the event that the application was unsuccessful. I have therefore in these reasons referred to submissions being made by “the applicants”, on the basis that the first applicant was advancing submissions on both her behalf and on behalf of the second applicant.

C.    Background

24    The applicants are both citizens of the Russian Federation.

25    On 5 April 2014, both applicants arrived in Australia holding Subclass 600 Visitor visas. At the time of her arrival in Australia, the second applicant was a minor but is now an adult.

26    On 2 May 2014, the first and second applicants lodged applications for protection visas.

27    The applicants claimed to be Jewish. The applicants commenced preparation for conversion to Judaism (giyur) after their arrival into Australia. The applicants claim to fear harm in Russia on the basis that they are Jewish.

28    The first applicant claimed she is bisexual and that she fears the repressive policies and practices in Russia towards LGBTQI people, as well as government condoned antisemitism. The second applicant claimed fear of antisemitic treatment in Russia and mistreatment in response to her views about sexual diversity and human rights.

29    The respective applications for protection visas were refused by a delegate of the Minister (Delegate) in separate decisions pursuant to s 65(1)(b) of the Migration Act 1958 (Cth), on 24 February 2016 in the case of the second applicant, and on 23 June 2016 in the case of the first applicant.

30    The applicants then sought a review of the Delegate’s decisions.

31    On 15 October 2018, the Tribunal affirmed the decision of the Delegate to refuse to grant the protection visas to the applicants (Tribunal Determination).

32    On 13 November 2018, the applicants filed an application in the Federal Circuit Court of Australia (as it was then known) seeking judicial review of the Tribunal Determination.

33    On 6 December 2018, a Registrar of the Federal Circuit Court made orders by consent, including orders that the first applicant be appointed as the second applicant’s litigation guardian (litigation guardian order).

34    For reasons that are not explained, no substantive steps were taken in the Federal Circuit Court between December 2018 and December 2022. I infer that at least in substantial part this was because of difficulties in conducting in person hearings during the height of the COVID-19 pandemic.

35    On 8 December 2022, the judicial review proceedings was docketed to the primary judge and on that day the primary judge listed the proceedings for hearing on 19 April 2023.

36    On 19 April 2023, the hearing proceeded before the primary judge. The applicants were represented by pro bono counsel.

37    At the outset of the hearing, the primary judge dealt with three procedural matters as noted in FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 729 (J) at [9]-[16], namely:

(a)    giving a disclosure that her Honour had undertaken a conversion to Judaism;

(b)    vacating, by consent, the litigation guardian order in respect of the second applicant; and

(c)    an application by the applicants to rely on a further amended application.

38    At the conclusion of the hearing on that day judgment was reserved.

39    On 20 April 2023, the applicants’ pro bono counsel notified the primary judge that she had received instructions that had put her in a position where she had to withdraw.

40    Following the withdrawal of counsel for the applicants, the primary judge’s chambers received email correspondence from the applicants which outlined various grievances the applicants had regarding the final hearing. These grievances are summarised in J at [21]-[25].

41    On 9 May 2023, the matter was listed for a directions hearing before the primary judge to address the concerns raised by the applicants in their email correspondence (directions hearing).

42    On 16 May 2023, the applicants filed two interlocutory applications.

43    The first interlocutory application, dated 13 May 2023, was in these terms:

Please refer to Affidavit

Change Judge/division

Allow to lodge additional grounds

Allow us additional time to lodge

Revert the order 1 made by Judge Given on 19 April 2023/make it invalid as [2nd applicant] was underaged during the whole process and it causes additional trauma

A declaration that the recommendation of the Indep Protection Assessment Reviewer was not made in accordance with law, by reason of the grounds of this application.

An injunction restraining Minister make further decisions

Wave condition of “no further stay” as the situation in Russia deteriorate.

44    The second interlocutory application, dated 15 May 2023, was in these terms:

We did not give consent … joint hearing by Tribunal.

To allow use full name

To issue us with legal identity and travel documents according to convention

To wave no further stay and no further travel considerations to our visa

To lodge additional grounds for jurisdictional error during the process based on affidavit

To apply Rights of the Child and Vulnerable persons test.

To provide and insure full confidentiality

To allow to lodge additional claims as Russia is in war with Ukraine, which poses additional fears for life, situation beyond our control

To allow government safety net as other citizen.

45    The primary judge listed the applications for an interlocutory hearing on 7 June 2023.

46    On 6 June 2023, the first applicant sought an adjournment, and the Minister consented. The matter was relisted for hearing on 15 August 2023.

47    On 15 August 2023, the primary judge heard the interlocutory applications. The applicants appeared before the primary judge with the assistance of an interpreter in the Russian language. The second applicant, who by that time was 22 years old and fluent in English, requested that she not use the services of the interpreter. The primary judge acceded to that request and also noted in her Honour’s reasons for judgment that the first applicant only used the interpreter intermittently and predominately addressed the Court in English: J at [31].

48    On 17 August 2023, the first applicant emailed the Court outlining additional grievances in regard to the interlocutory hearing, namely that the interpreter could not hear properly, and in turn, translate accordingly, that the first applicant knew the interpreter from private settings, and that there were two unknown men at the hearing.

49    On 18 August 2023, the primary judge published reasons for judgment and made the following orders:

1.    Each of the applications in a proceeding filed on 16 May 2023 (interlocutory applications) is dismissed.

2.    The applicants must pay the first respondent’s costs and disbursements, of and incidental to, the interlocutory applications, as agreed or taxed.

3.    Final judgment remains reserved from 19 April 2023, to a time and date to be notified to the parties.

4.    No further documents are to be accepted for filing from the applicants in these proceedings by the Registry, except by order of the Court.

50    On 5 September 2023, the applicants filed an application for leave to appeal the orders made by the primary judge on 18 August 2023 and for an associated extension of time to file the application (application for leave to appeal).

51    The following orders were sought in the application for leave to appeal:

1.    adjourn a hearing appointed on 14 September

2.    vacate a hearing date and Stay further decisions of Judge Given

3.    Remove [counsel for the Minister] and Judge Given from our case

4.    Set out the orders made on 19 April, 9 May, 15 August and 18 August

5.    Reopen the case

6.    [L]eave to appeal

7.    remittal

8.    set aside the orders made by Tribunal and Judge Given

9.    Costs

10.    Stay further execution of Judge Given

11.    Directions

12.    Directions regarding the initial judge changed in our case and delays in the proceedings for 5 years

52    The grounds sought to be relied upon by the applicants were stated in the application for leave to appeal in the following terms:

1.    Question of law

2.    Administrative Error, bias in judgement, conflict of interests

3.    Judge ethics, unfit for judgement, same with [counsel for the Minister]

4.    Mental and Health stress due to discrimination, harassment and prejustice in the court

5.    No legal education, being self represented with lack of the knowledge of Australian judicial system

6.    Violation of hearing rule and natural justice

7.    Not native English speakers, violation of translation in the court

8.    Alleged corruption and violation of separations of the powers

9.    Violating of Proceedings by the registry

53    Many of the complaints sought to be advanced by the applicants fall outside the present application for leave to appeal given this Court’s role as an appellate court considering the interlocutory orders and decision of the primary judge on 18 August 2023. No plausible basis was advanced as to how grounds of appeal seeking to canvass judicial ethics, abilities of counsel and the primary judge, mental and physical stress due to time in Court, difficulties being self-represented and non-native English speakers, alleged violation of translation in Court, alleged corruption and alleged violations by the Registry, could rationally impugn the orders made by the primary judge dismissing the recusal application and the application by the applicants to reopen their case.

D.    Leave to appeal and extension of time

D.1    Leave to appeal

54    Leave to appeal is required under s 24(1A) of the FCA Act to appeal the primary judge’s interlocutory orders.

55    Leave to appeal will only be granted where the Court is satisfied that the applicants could demonstrate that the primary judge’s decision is “attended with sufficient doubt to warrant its being reconsidered” and that “substantial injustice would result if leave were refused, supposing the decision to be wrong”: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398; [1991] FCA 844 (Sheppard, Burchett and Heerey JJ).

D.2    Extension of time

56    An extension of time is also required as the application for leave to appeal was not made within 14 days of the primary judge’s orders: r 35.13 of the Rules. It was filed on 5 September 2023, 18 days after the primary judge’s orders made on 18 August 2023.

57    As a matter of principle, the question to be determined on an application for an extension of time as to whether there is an “arguable error” is the same as the test postulated in Décor with respect to an application for leave to appeal: Sharman Licence Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 at [20] (Lindgren J). As a practical matter, whether there may be an “arguable error” of sufficient seriousness to justify a grant of leave to appeal will be the same inquiry as to whether it might justify an extension of time, assuming an otherwise acceptable explanation is provided for the delay.

58    I am satisfied that (a) the relatively short delay in this case is largely attributable to the applicants being self-represented, (b) there is no relevant prejudice to the Minister, (c) the Minister did not advance any submissions opposing an extension of time, and (d) the “arguable error” dimension will otherwise be resolved in addressing the application for leave to appeal. I have therefore concluded that it is appropriate to grant the extension of time for the application for leave to appeal to be filed in order to ensure that the application can be dealt with in these reasons on a substantive basis.

E.    Recusal application

E.1.    Legal principles

59    The governing principle in addressing applications for disqualification by reason of an apprehension of bias was succinctly stated by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) in these terms:

[S]ubject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

(Footnotes omitted.)

60    This principle has been described as the “double might test”. As Charlesworth J stated in Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197; [2018] FCA 69 at [35]-[36]:

[35]     The first “might” concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second “might” concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.

[36]     Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration & Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each “might” in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet” on the question: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] (Weinberg J).

61    In Ebner at [69]-[72] Gaudron J, in agreement with the majority but writing separately, addressed association:

[69]     As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge.

…

[72]     Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation. It is impossible to identify all of the kinds of association which might be thought to reveal a serious possibility of being potentially disqualifying. As we have said earlier, the application of the apprehension of bias principle requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

(Footnotes omitted.)

62    As the High Court explained in Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ), the apprehension of bias principle requires two steps to be undertaken. First, it is necessary to identify a matter that might lead a judge to decide a case other than on its legal and factual merits. Second, it is necessary to articulate a “logical connection” between that matter and the feared departure by the judge from determining the case on its legal and factual merits.

63    The reasonableness of any asserted apprehension of bias is to be considered in the context of ordinary judicial practice and the fair-minded lay observer is not to be assumed to have a detailed knowledge of the law or of the character or ability of a particular judge: Charisteas at [12].

64    The test is objective and requires the decision-maker to assume the observer is reasonable and “the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’”: Johnson v Johnson (2000) 201 CLR 488; [2010] HCA 48 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

65    Further, the reasonableness of any apprehension must be considered in the context of ordinary judicial practice, including the exigencies of modern litigation such as active case management: Ogawa v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161 at [31] (Rares, Perry and Hespe JJ).

E.2.    Reasoning of the primary judge

66    The primary judge considered the recusal application on the basis of the following claims made by the applicants: (a) procedural fairness, (b) “denial of an extension of time”, (c) the lack of an interpreter at the final hearing, and (d) a forced apology for ex parte emails.

67    First, the primary judge considered that the first applicant had not established a logical connection between any basis for a deviation from the course of deciding the case on its merits. The primary judge concluded that the first applicant’s subjective feeling that she had not received a fair hearing was advanced with no evidence, matters alleged to give rise to the procedural fairness basis did not occur, and the first applicant misapprehended that the Court would operate in the same manner as the Tribunal.

68    Second, the primary judge concluded that the applicants’ contention that they were denied “an extension of time” and discouraged from lodging new grounds of appeal after their counsel withdrew mischaracterised the exchange that had occurred between the Court and the applicants at the directions hearing. The primary judge noted that the first applicant made submissions at the directions hearing that the applicants needed time to find a new lawyer for the purposes of preparing supplementary submissions within the grant of leave made at the conclusion of the final hearing. The grant of leave was to facilitate submissions on the issue of whether if the appeal were successful any remittal should only be with respect to the second applicant, which subsequently, the Minister indicated was no longer being pressed. The Minister noted that no two page submissions would be forthcoming from him. The primary judge noted that the Court explained to the applicants that there would be limited utility in an extension to file the two page submissions. The primary judge also noted that unlike in criminal proceedings, there was no right to be legally represented in the migration jurisdiction, and the applicants had ample opportunity to advance their case since its commencement in 2018. The primary judge concluded that in the context of the case, where pleadings had closed, the hearing concluded and judgment reserved, any lay observer would not apprehend bias.

69    Third, the primary judge considered the submission that apprehended bias may be discerned by the alleged lack of an interpreter for the applicants at the final hearing. Her Honour noted that the applicants were represented by counsel, and that it was explained to the applicants at the final hearing that where a party is represented, an interpreter is not provided, as interpreters are to enable a party to communicate with the Court. The primary judge concluded that a fair-minded lay observer, properly informed, would not have apprehended that the Court would resolve the proceedings on anything other than their legal and factual findings.

70    Fourth, the primary judge considered the submission that the first applicant was “made” to apologise for sending ex parte emails to the Court. Her Honour concluded that the transcript of the final hearing did not support that submission, and that there was nothing in this context to give rise to any reasonable apprehension of bias.

71    The primary judge then considered the recusal application on the basis of her Honour’s disclosure that she was Jewish. The primary judge noted that a fair-minded, lay observer would have no apprehension of bias on being informed that (a) her Honour had expressly made the disclosure and stated that she did not consider that it would cause difficulty in determining the case, (b) the applicants were given an adjournment to consider the disclosure, and (c) counsel for the applicants had instructions that they had “no difficulty” with the Court hearing the case. In those circumstances, the primary judge considered that the applicants waived their right to make a recusal application on the basis of the disclosure but, in any event, having considered the requisite test, her Honour was not satisfied she should recuse herself.

E.3.    Submissions

E.3.1.    Submissions of the applicants

72    By way of summary, the applicants advance seven essential complaints that they contend give rise to a reasonable apprehension of bias.

73    First, the applicants claim that the primary judge, as a woman who converted to Judaism, should not have heard the applicants’ case and was wrong to refuse the recusal application. They submit that the religious beliefs of the primary judge created a concern that personal beliefs intersected with professional duties, affecting the impartiality and fairness of the legal process.

74    Relatedly, in various submissions, the applicants also submit that women are ineligible to serve as judges. The applicants claim that the proposition stems from (a) the tyranny inherent in the judicial position, and (b) the extension of the notion in Judaism that women cannot testify in Court.

75    Second, the applicants submit that they were not afforded a proper opportunity to present their case due to the actions of the primary judge. In particular, they submit that the primary judge did not let them speak at the final hearing or give oral evidence, and that they were not informed of the delivery of the primary judge’s decision on 18 August 2023, and in turn, could not “present our interests”.

76    Third, the applicants submit that they were denied an extension of time to make submissions pursuant to the grant of leave given at the end of the final hearing, in relation to a point the Minister indicated they were no longer pressing. The applicants submit that this extension of time is necessary given they are not legally educated and needed time to prepare and familiarise themselves with the proceeding.

77    Fourth, the applicants made various submissions regarding the Court interpreter, or lack thereof. The applicants submit that the lack of an interpreter at the final hearing meant they did not understand what was happening. The applicants also made further submissions regarding the Court interpreter at the interlocutory hearing including that (a) the interpreter could not hear the Court proceedings very well, (b) the translation provided by the interpreter was not correct, (c) they knew the interpreter, and (d) the interpreter stopped translating so they could not understand.

78    Fifth, the applicants also submitted that the primary judge was not prepared to hear the matter and incorrectly applied the relevant legal framework. The first applicant submitted that the primary judge did not refer to human rights law, had not read the applicants’ submissions or affidavits, did not accurately implement the legal framework and mishandled case management. The first applicant further submitted in oral submissions that she asked the primary judge if her Honour understood migration law, and the primary judge responded “No”.

79    Sixth, the applicants submit that the Court and opposing counsel lacked the “appropriate attire” to be worn in Court, in particular, wigs, robes and kippahs. The applicants submit that this attire, wigs in particular, are symbols of respect for a Court of law.

80    Seventh, the applicants also submit that there were irrelevant considerations taken into account, harassment and intimidation in Court, and a lack of respect and empathy. As such, the applicants submit they did not receive a “fair trial”.

81    The applicants submit that a refusal of leave would result in substantial injustice supposing the primary judge’s decision to be wrong. The outcome of this hearing will affect the consideration of their visa appeal. The applicants also made further submissions regarding the impact of this appeal on their mental, physical and spiritual health.

E.3.2.    Submissions of the Minister

82    The Minister submits that the first applicant misapprehends the nature of the judicial review proceedings she was engaged in during the final hearing.

83    The Minister submits that there is no sufficient basis that warrants leave being granted to the applicants, as the first applicant has not identified any conduct of the primary judge that would form an adequate basis for a fair-minded observer to perceive as the possibility of bias. The Minister submits that the primary judge was simply engaging in the ordinary judicial practice of hearing and judicial review.

84    The Minister adopts the reasoning of the primary judge as to why her Honour refused to recuse herself: J at [59]-[105].

85    The Minister further submits that the first applicant’s subjective perceptions and opinions, detailed in her affidavits and submissions, are not relevant as the test of reasonable apprehension of bias is an objective test.

E.4    Consideration

86    I am not satisfied that the applicants have demonstrated any basis on which it could be concluded that the reasoning of the primary judge in declining to recuse herself was attended with sufficient doubt to justify a grant of leave to appeal. The first applicant has not demonstrated any conduct of the primary judge that could logically form any basis to conclude that a fair-minded observer might apprehend that the primary judge might not bring an impartial mind to the resolution of the applicants’ judicial review application.

87    First, the religious faith of a judge and gender cannot rationally or plausibly be said to give rise to any reasonable apprehension of bias. It is an objective, not subjective, test. It does not fall to be determined by any idiosyncratic notions of religion or the status of women entertained or held by the first applicant.

88    Second, the applicants were not denied any opportunity to make further submissions at the delivery of judgment on 18 August 2023. A party does not have any right to make further submissions at the time that judgment is delivered, except to the extent that the Court might invite submissions on consequential orders, such as with respect to costs. Further, the applicants were represented by counsel at the judicial review hearing and were provided with a copy of the reasons for judgment on 18 August 2023.

89    Third, the length of time that might have been given to respond to submissions that were ultimately not advanced cannot logically give rise to any prejudice. Further, the length of time that might have been necessary to enable unrepresented litigants to respond to a submission is inherently a discretionary issue that the primary judge was best placed to address and the applicants point to no reason other than that they were self-represented litigants that the time permitted by the primary judge was insufficient and could therefore give rise to a reasonable apprehension of bias.

90    Fourth, assuming for present purposes that there were some difficulties with the interpretation provided by the interpreter during the judicial review hearing, in the absence of any substantive complaint by the applicants during the hearing, that could not logically give rise to any apprehension of bias. As the primary judge stated at [32] of her Honour’s reasons, which was not challenged, at no point were any concerns raised during the hearing about the quality of interpretation provided, other than a comment following the mid-morning adjournment that the interpreter “cannot hear very well”. I note the critical issue is the absence of any substantive complaint being made to the primary judge in the course of the hearing. Even if a party is represented by counsel, the value of such representation may be substantially diminished if the party cannot follow what is being said in Court and therefore not be in a position to provide any necessary instructions.

91    Additionally, the primary judge noted that the first applicant did not raise that she knew the interpreter during the interlocutory hearing and that there was no evidence before the Court that the applicants and the interpreter were known to each other. The primary judge also noted that the only persons present in the courtroom gallery seating were a member of Court staff, a person who appeared to be a solicitor for the respondent and a third person, who was apparently a friend of the second applicant.

92    Fifth, the generalised and unparticularised complaints, made by a person with no legal qualifications or experience, that the primary judge was not prepared to hear the matter, incorrectly applied the relevant legal framework, did not refer to human rights law, had not read the applicants’ submissions or affidavits, did not accurately implement the legal framework, and mishandled case management, cannot provide any probative basis on which any reasonable apprehension of bias could arise. The transcript of the judicial review hearing was not before me but the objective reality is that the judicial review hearing proceeded in open Court, an interpreter was present, the applicants were represented by counsel and no complaint appears to have been raised by their counsel or counsel for the Minister that could substantiate the complaints now sought to be advanced by the applicants. Further, on no view was the primary judge required to review submissions or evidence that was irrelevant to a judicial review application. Rather than demonstrating any deficiency in the approach taken by the primary judge, this complaint, if anything, appears to reflect the first applicant’s fundamental misunderstanding of the nature of judicial review applications.

93    Sixth, any concern of an apprehension of bias because the primary judge and opposing counsel lacked the “appropriate attire” to be worn in Court, in particular, wigs, robes and kippahs again might reflect an idiosyncratic understanding of the first applicant but could not logically lead any fair-minded observer to share such an apprehension.

94    Seventh, generalised complaints about taking irrelevant considerations into account, harassment and intimidation in Court, and a lack of respect and empathy, particularly in the absence of any transcript and the applicants’ lack of familiarity of judicial review proceedings, cannot provide any probative basis on which any reasonable apprehension of bias could arise. Again, rather than demonstrating any deficiency in the approach taken by the primary judge, this complaint, if anything, appears to reflect the first applicant’s fundamental misunderstanding of the nature of judicial review applications.

95    Finally, I am not satisfied that refusing leave to appeal the order dismissing the recusal application would give rise to any substantive prejudice. If their application for judicial review is otherwise unsuccessful, the applicants would still be able to appeal the decision of the primary judge.

F.    Application to reopen case

F.1.    Legal principles

96    The applicable principles governing applications to reopen cases, as noted by the primary judge, were summarised by White J in Matson v Attorney-General (Cth) [2021] FCA 161 at [178]-[181] in the following terms:

[178]     The principles on which the Court acts when considering an application to reopen a matter before the delivery of judgment are settled. The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 at [48].

[179]     In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. The applicant’s present application seems to be in the first and fourth of these categories.

[180]     The matters bearing on the interest of justice are various. They include:

•    the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;

•    the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;

•    the significance of the proposed new evidence and submissions in the context of the hearing

•    the explanation for the evidence not having been led at the trial;

•    the likely prejudice to the opposing party if the application is allowed;

•    the potential detriment to the applying party if the application is refused; and

•    any delay by an applicant in seeking leave to reopen.

[181]     Regard should also be had generally to the overarching purpose of the Court’s civil practice and procedure provisions stated in ss 37M and 37N of the FCA Act.

97    Section 37M of the FCA Act provides that the overarching purpose of civil practice and procedure provisions is to facilitate the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible. Section 37M(2) of the FCA Act provides further objectives.

98    Section 37N of the FCA Act provides that parties are to act consistently with the overarching purposes.

F.2.    Reasoning of the primary judge

99    The primary judge addressed the applicants’ request to reopen their case at J [115]-[141].

100    The new grounds of appeal and “requested orders” sought to be advanced by the applicants were identified in the affidavit of the first applicant made on 15 May 2023 that accompanied the interlocutory applications, in the following terms (errors in original and numbering added):

a.    To issue us the Identity and travel documents as per Convention

b.    To make condition of no further travel and no further stay as contradictionary of Convention given that our Protection claims were lodged on 5 May 2014.

c.    To identify that statutory was incorrectly reconstructed and applied by not taking into consideration test for vulnerable person, Right of the Child, there was no offer of the lawyer, child psychologists presented on interviews, was presented instead harassment and intimidation in the Tribunal hearing by Member as shown incidents with the Bible/Torah/books were not presented correctly.

d.    Tribunal member did not consider [Naval story] which was very damaging and just increased fears of attacks.

e.    To allow us to lodge additional claims as situation deteriorated and war between Russia and Ukraine is beyond our control, increasing risks of prosecution due to political opinion and fears.

f.    Tribunal member does not considered the implication of confidentiality, mentioning in his decision many detail, including names, places which

g.    Evidence was collected incorrectly and the emotional distress was not taken into account, given the Member is not psychologist or doctor and ignored papers of psychologist, doctors, especially on immune condition of [Second Applicant] which shows excess of [illegible] and bias.

h.    Tribunal member even failed to write correct name of [Second Applicant] and the has prevented of using if for 9 years.

i.    The length of the process of 9 years and absence of government support prevented us from being safe during Covid period and access to courts/using economical disadvantage against us. There was no help with employment.

j.    Tribunal Member ignored or disregarded letters from members of Jewish community, failed to understand that Jewishness goes through mother, undermined statements of “Best Interest of Child” other [illegible].

k.    Tribunal Member disregarded relevant considerations and paying regards to irrelevant considerations leading interview from political statements which were made in the very first submissions and filling the interview time with irrelevant, improper construction of the relevant act led in result to errors and invalidity.

l.    Acting in bad faith as Tribunal Member did not concern himself with confidentiality while writing decision or making his assessment or intimidating distress child during the hearing — Breaching the hearing and bias rules of natural justice, not taking into consideration the child attendance of ultra-orthodox school and later Anglican school not taking into consideration respect towards helpful communities and letters from Minister, Pastor.

m.    Tribunal Member illogically and irrationally wrote his decision, contradicting with himself

n.    Tribunal was unreasonable in adjournment and preventing phycologist or significant other/Rabbi/Priest, friends on the hearing

o.    Failed the right to preserve the identity even name was not recorded correctly Member of Tribunal applied incorrect legal test and failed to provide procedural fairness just recording errors from inferior courts.

101    The primary judge concluded that the applicants advanced this claim on the basis of “buyer’s remorse” at how their judicial review application was put forward to the Court, by their counsel. The primary judge observed that there was no evidence before the Court that counsel for the applicants did anything other than act in accordance with the applicants’ instructions, and that no authority nor any established principle supported a case being reopened upon the basis of dissatisfaction.

102    To address the Minister’s submission that the applicants sought to adduce new evidence, containing new, proposed grounds of review, the primary judge noted that the proposed new grounds seek, in essence, merits review. The primary judge also considered that the factors informing the interests of the administration of justice weighed against the applicants being allowed to reopen the case prior to the delivery of judgment.

103    The primary judge noted that an additional basis arose as to whether the second applicant should be entitled to have the matter reopened upon the vacation of the litigation guardian order. Her Honour concluded that she was not persuaded that the second applicant had been unable to present her case or denied an opportunity to be heard, and as such, the second applicant should not be given an opportunity to raise new grounds of review.

F.3.    Submissions

F.3.1.    Submissions of the applicants

104    The applicants submit that the primary judge was wrong to refuse their application to reopen their case to advance further grounds of review. The new grounds of review that were sought to be advanced are identified at [100] above.

105    The applicants submit that the refusal to allow them to reopen their case to raise the new grounds of appeal in their judicial review application was a violation of the hearing rule and procedural fairness, and that “natural justice” was not observed. The applicants also submit that the primary judge did not ensure that they had sufficient time to present their evidence and arguments.

106    The applicants submit that the primary judge was wrong to refuse the additional grounds as irrelevant.

107    The applicants further submit that the primary judge was wrong to reject this application as the second applicant did not have adequate time and mental capacity to familiarise herself with the case upon the vacation of the litigation guardian order.

F.3.2.    Submissions of the Minister

108    The Minister submits that the Court should be especially cautious when interfering with the exercise of discretionary judgments concerning practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

109    The Minister submits that there was no sufficient basis for the primary judge to grant leave to reopen the case. The Minister adopts the reasoning of the primary judge in her Honour’s refusal to permit the applicants to reopen their case, and notes that the applicants were seeking essentially merits review in their amendment applications.

110    The Minister submits that the primary judge was correct in her Honour’s approach to the application to reopen.

F.4.    Consideration

111    A decision not to permit a litigant to raise new grounds of review after the hearing of a judicial review application and where judgment has been reserved cannot, by itself, give rise to any violation of the hearing rule, denial of procedural fairness, or constitute a failure to observe “natural justice”. Nor is any requirement necessarily imposed on a primary judge to ensure that an applicant has “sufficient time” to present their evidence and arguments in support of any application to raise new grounds of review after judgment has been reserved.

112    Characterising the applicants’ application to reopen their case in their judicial review application after judgment had been reserved might not be the most appropriate epithet for the primary judge to have used. Nevertheless, there is considerable force in her Honour’s concern that to permit a litigant to seek to advance additional or alternative grounds of appeal after an application for judicial review has been fully argued and judgment reserved is in effect antithetical to the overarching purpose and the efficient administration of justice. It follows that any application to reopen a case in those circumstances must be closely scrutinised and assessed against established principles governing applications to reopen cases.

113    I am not satisfied having regard to those principles that the applicants have established that the primary judge’s refusal to permit them to reopen their case is attended with sufficient doubt to warrant a grant of leave to appeal that refusal.

114    Ultimately, the primary judge rejected the application to reopen on the basis that the grounds sought to be advanced impermissibly sought merits review.

115    Given the generality and tendentious nature of the additional or alternative grounds sought to be relied upon by the applicants, I am not satisfied that the primary judge’s finding that the grounds impermissibly sought merits review was not reasonably open.

116    The applicants were given every opportunity to present their case for judicial review through their counsel at the hearing of their judicial review application. There is no apparent reason, if the grounds had any intrinsic merit for a judicial review application, that they could not have been advanced by their counsel during the hearing. This is a fundamentally different case to a case in which an applicant might seek to raise new grounds after obtaining legal representation. At least some of the grounds now sought to be advanced by the applicants on their face suggest why they may not have been advanced by their counsel, including unsubstantiated serious claims of intimidation of the second applicant by the Tribunal and unsubstantiated failures to provide procedural fairness.

117    In the absence of any identification of substantive grounds relevant to judicial review or any compelling explanation for a failure to raise those grounds for review at the hearing of the judicial review application, I am not satisfied that the discretionary decision by the primary judge not to permit the applicants to reopen their case after judgment was reserved, is attended with sufficient doubt to justify leave to appeal that decision being granted.

118    Nor am I satisfied, given the absence of any clearly articulated additional or alternative grounds for judicial review of the Tribunal Determination, that the applicants will suffer any substantial prejudice if leave is not granted to appeal the order dismissing their application to reopen their case. Moreover, if the applicants are otherwise ultimately unsuccessful on their judicial review application, they will still have rights of appeal.

G.     Disposition

119    For the foregoing reasons, an order is to be made extending the time in which the application for leave to appeal is to be filed, but the application for leave to appeal is otherwise to be dismissed.

120    The first applicant is to pay the costs of the Minister, as taxed or agreed.

Associate:

Dated:    24 May 2024