Federal Court of Australia

Leo’o Olo v Minister for Immigration and Multicultural Affairs [2026] FCA 10

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal of 8 August 2024.

2.    A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine the applicant’s application for review according to law.

3.    The first respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 8 August 2024, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) cancelling the applicant’s visa. The applicant has applied for judicial review of the Tribunal’s decision.

2    The applicant’s amended originating application contains eight grounds of review. The first ground alleges that the Tribunal’s decision is vitiated by a reasonable apprehension of bias. I have decided that the first ground should be upheld.

3    The authorities indicate that where a ground of apprehended bias is upheld, the Court should not proceed to determine the remaining grounds: Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [2] and [117]; Jorgensen v Fair Work Ombudsman [2019] FCAFC 113 at [161]-[163]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 (Gambaro) at [48]. Accordingly, these reasons only deal with the apprehended bias ground.

4    It is necessary to describe the factual background, the relevant legislative provisions and the delegate’s reasons in order to give context to the case.

Background

5    The applicant is a citizen of New Zealand who came to Australia on a Class TY Subclass 444 Special Category (Temporary) visa in 2013 when he was 14 years of age. On 19 January 2022, he was sentenced to two years’ imprisonment for an offence of grievous bodily harm.

6    On 8 April 2024, a delegate exercised the Minister’s discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s visa.

7    Section 501(2) of the Migration Act provides, that the Minister may cancel a visa that has been granted to a person if (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. The applicant did not pass the character test as he has a “substantial criminal record” within ss 501(6) and (7), having been sentenced to imprisonment of at least 12 months.

8    The applicant’s criminal history includes convictions in 2019 for grievous bodily harm, in 2020 for possessing dangerous drugs and utensils or pipes, in 2022 for a domestic violence offence of assault occasioning bodily harm and in 2023 for domestic violence offences including wilful damage and assault occasioning bodily harm.

9    The applicant subsequently applied to the Tribunal for review of the cancellation decision. The Tribunal conducted a hearing on 25, 26 and 29 July 2024. On 8 August 2024, the Tribunal decided to affirm the delegate’s decision and provided written reasons for its decision.

The submissions

10    The applicant submits that the conduct of the Senior Member constituting the Tribunal during the hearing created a reasonable apprehension of bias, which was confirmed by the content of the Tribunal’s reasons for decision.

11    The applicant places substantial reliance upon the judgment of Mortimer J (as the Chief Justice then was) in Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1583 (Bhatti) at [130]. In that case, her Honour held that apprehended bias had been demonstrated by a combination of factors that included: focusing on irrelevant matters; making stereotypical assumptions about religious practices; identifying another basis to cancel the appellant’s visa, such as to create an apprehension that the Tribunal considered the visa cancellation decision should have occurred in any event; inaccurately summarising the evidence; failing to properly consider the applicant’s submissions; making findings contrary to inferences available on the evidence; accusing the applicant of changing their evidence when this did not occur; overall impatience; and hostile or harassing questioning.

12    The applicant also relies on MZZLO v Minister for Immigration and Border Protection (No 2) (2016) 246 FCR 111 (MZZLO) at [76]-[78], where Moshinsky J determined that the making of serious allegations about the conduct of the applicant’s lawyer gave rise to a reasonable apprehension of bias.

13    The applicant’s case is based upon the following alleged conduct of the Senior Member:

(1)    using a dismissive and aggressive tone of voice and body language towards the applicant and the applicant’s witnesses;

(2)    engaging in extensive questioning that went beyond robust and forthright testing of evidence and amounted to cross-examination;

(3)    engaging in insensitive, rude and improper cross-examination;

(4)    indicating that she would not even accept the credibility of the evidence provided by witnesses who were not required for cross-examination by the Minister’s legal representatives;

(5)    making serious adverse findings concerning the conduct of the applicant’s lawyers;

(6)    indicating that commencing the proceeding was futile; and

(7)    making findings of fact that were illogical, unreasonable, unsupported by the evidence or insensitive.

14    In explaining his allegation of apprehended bias, the applicant tendered two aides-memoir, and an edited audio-visual recording of the Tribunal during the hearing. Each aide-memoire identifies passages in the transcript, timestamps in the edited audio-visual recording, and paragraphs in the Tribunal’s reasons which the applicant claims demonstrate apprehended bias.

15    The Minister submits that the Tribunal merely engaged in robust testing of evidence, and that to the extent that displays of frustration or insensitivity occurred, they were within the bounds of acceptability in the normal course of a hearing. It is submitted that the Senior Member was entitled to question witnesses assertively and forthrightly disclose preconceptions about the case. The Minister submits that it is not open to the Court to make use of the Tribunal’s reasons in determining a ground of apprehended bias. The Minister argues that a finding of apprehended bias is not to be reached lightly and must be firmly established, and that the evidence does not even approach the necessary threshold.

Principles

The governing principle

16    In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner), the plurality identified at [6], “the governing principle” by which apprehended bias is demonstrated as:

…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.

17    As Kiefel CJ and Gageler J explained in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 (QYFM) at [38], the test in Ebner entails three steps:

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.

18    Their Honours observed at [45], citing Webb v The Queen (1994) 181 CLR 41, that in undertaking that assessment, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”.

19    The test has been described as the “double might” test, emphasising the test is one of real possibility rather than probability: QYFM at [37]. However, the reasonable apprehension must be “firmly established”: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553. The possibility must be, “real and not remote”: Ebner at [7]. It is important not to accede “too readily” to suggestions of the appearance of bias: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.

20    The cumulative effect of comments by the decision maker can be taken into account: AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at [67]-[68].

21    The fair-minded lay observer is taken to have knowledge of the nature of the decision and the context in which the decision is to be made: Isbester v Knox City Council (2015) 255 CLR 135 (Isbester) at [23].

Application of the governing principle to proceedings in the Tribunal

22    While the test for apprehended bias is the same in judicial and administrative proceedings, its application must take into account the kind of decision-making involved. In Ebner, the Court explained at [4]:

The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness. The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making.

23    Similarly, in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, the Court observed at [70]:

What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision.

24    An apprehension of bias may arise in inquisitorial proceedings, including from the way a tribunal member questions a witness: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 (Refugee Review Tribunal) at [29]-[32]; BW v Secretary, Department of Communities and Justice [2024] NSWSC 1354 (BW) at [144], [292]-[294]. The occasions relied on must be viewed as a whole: BW at [347].

25    One of the bases of the allegation of apprehended bias concerns the extent and nature of interventions of the Tribunal during the giving of evidence. The following passages from Refugee Review Tribunal are instructive:

[29]    Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.

[30]    Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

26    In Bushell v Repatriation Commission (1992) 175 CLR 408, Brennan J at 425 observed that in substance the review conducted by the Tribunal is inquisitorial in nature. However, his Honour also recognised at 424 that a review by the Tribunal may have the appearance of an adversarial proceeding when the respondent appears to defend a decision. In an application for review of a cancellation decision under s 501(2) of the Migration Act, the Minister may be represented by lawyers, produce evidence, cross-examine witnesses and make submissions against an order setting aside the decision under review. Accordingly, although inquisitorial, the conduct of an application for review of a decision to refuse to revoke a cancellation decision has many of the features of an adversarial process which may inform the question of whether a fair-minded lay observer might reasonably apprehend that a Tribunal member might not bring an impartial mind.

27    In SZBLY v Minister for Immigration and Citizenship [2007] FCA 765, Cowdroy J observed at [25]:

Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings, but it is sufficient if the parties or the public “might entertain a reasonable apprehension”.

28    Excessive judicial intervention can found apprehended bias. In R v T, WA (2013) 118 SASR 382, Kourakis CJ at [38] identified three grounds upon which judicial intervention may result in a miscarriage of justice: (1) where the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground); (2) where the questioning gives an appearance of bias (the bias ground); and (3) where the questioning is such an egregious departure from the role of a decision maker presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground). These grounds overlap: Gambaro at [22]-[23].

29    In Galea v Galea (1990) 19 NSWLR 263 (Galea), Kirby A-CJ observed at 281:

Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”.

(Citations omitted.)

30    In Isbester, the plurality observed at [45] that an interest of a prosecutor, accuser or other moving party in a decision points to the possibility of a deviation from the true course of decision-making. Their Honours went on to hold at [46]:

A “personal interest” in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor’s view of guilt or punishment... It is well accepted…that it might reasonably be thought that the person’s involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making.

31    The plurality also observed at [49] that, “once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious”.

Whether and to what extent the Tribunal’s reasons may inform a ground of apprehended bias

32    An issue in contention is whether the Court may take into account the content of the Tribunal’s reasons when deciding whether there has been an apprehension of bias. The applicant submits that the reasons can be considered, while the respondent submits that they cannot.

33    The applicant relies on Vakauta v Kelly (1989) 167 CLR 568 (Vakauta). In that case, the trial judge had referred to three doctors who were to be called to give evidence for the defendant as “that unholy trinity”, and said he was not usually very impressed with their opinions because they were almost inevitably slanted in favour of the insurer. Only one of the three doctors was ultimately called. In his reasons, the judge described the evidence of the doctor as being, “as negative as it always seems to be — and based as usual upon his non-acceptance of the genuineness of any plaintiff’s complaints of pain”. Justices Brennan, Deane and Gaudron held at 573, that in the context of the trial judge’s earlier oral comments, the comment in the reasons demonstrated apprehended bias. Accordingly, their Honours considered that the reasons could in those circumstances be relied upon to establish apprehended bias.

34    The Minister relies on Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (Michael Wilson). In that case, recusal of the primary judge had been sought on the basis that prior to the trial, his Honour had entertained ex parte applications by the plaintiff on seven separate days in closed court, delivered confidential reasons for judgment and made confidential orders. The NSW Court of Appeal held that apprehended bias was established, relying on factors including that, the material before the primary judge was not entirely supportive of the orders made; some of the orders were, in their nature, contestable; and the judgment did not reveal full and proper disclosure or consideration of the weaknesses of the applications (see at [61]).

35    On appeal to the High Court, Gummow ACJ and Hayne, Crennan and Bell JJ held, relevantly:

[67]     As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

[68]     The Court of Appeal was wrong to take account as it did of the reasons for judgment published by Einstein J after the trial in deciding whether in this case there was a reasonable apprehension of bias. The central and determinative question for this aspect of the matter was: might what was done in connection with MWP’s ex parte applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?

…

[73]    …There was, therefore, no sufficient basis to conclude that there was reasonable apprehension that Einstein J might have, as Young JA said, “put himself into the mindset of accepting that [MWP] is the ‘good guy’ and thus the opponent is otherwise”. And the Court of Appeal concluded that there was such a reasonable apprehension only by (impermissibly) reasoning backwards from what was decided at trial, and how it was decided, to the conclusion that it might reasonably be apprehended that the judge might have prejudged those matters.

36    In support of the proposition that the Tribunal’s reasons can be considered to demonstrate a reasonable apprehension of bias, the applicant relies on passages from the judgments of three judges in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17), which was decided after Michael Wilson. In that case, Kiefel CJ and Gageler J observed at [20]:

The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises. Where the question arises for determination after the [Immigration Assessment] Authority has made a decision on a review, the totality of the circumstances includes the decision and the reasons that the Authority has given for the decision.

37    In CNY17, Edelman J commented at [135]:

Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In [Michael Wilson], a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker’s bias and using comments in the reasons for judgment by the decision maker to “confirm, enhance or diminish the existence of a reasonable apprehension of bias”.

38    The other judges in CNY17, Nettle and Gordon JJ endorsed the views of the plurality in Michael Wilson and added at [69]:

The test for apprehended bias requires the court to consider what it is which might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. These points can be, and often are, considered before the decision is made. Here, they could have been considered as soon as the IAA was given the material by the Secretary. The test does not depend on anything which happens at the time of decision, or later.

(Emphasis in original. Citations omitted.)

39    The proposition that the views of the majority in CNY17 allow consideration of the AAT’s reasons in determining a ground of apprehended bias was considered in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218 (Chen). There the Full Court observed in obiter dicta at [90]:

The remarks of Kiefel CJ and Gageler and Edelman JJ in CNY17 do not overturn the decision in Michael Wilson which is authority of long-standing. In our view it would be contrary to that decision to treat the Tribunal’s reasons in the present case as confirming, enhancing or diminishing the existence of apprehended bias, and we have not done so. But nothing turns on our view in this regard as, in the circumstances of the present case, apprehended bias is established without reference to the Tribunal’s reasons.

40    I do not understand the Full Court in Chen to have concluded that the Tribunal’s reasons for decision can never inform a ground of apprehended bias, noting that its views about the use of reasons were expressly in respect of “the present case”. Similarly, in Michael Wilson, the plurality held at [68] that the Court of Appeal was wrong to take account of the reasons for judgment in deciding whether “in this case” there was a reasonable apprehension of bias. That language does not suggest an intention to exclude consideration of the reasons in every case of alleged apprehended bias. I do not understand Nettle and Gordon in CNY17 at [69] to have taken any different position.

41    In any event, in MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100 (MZAEU), the Full Court considered the decision in Michael Wilson and held:

[45]     We do not read the above as precluding reliance on reasons for decision in support of an argument of apprehended bias. For example, the reasons for decision may record some aspect of the conduct of the hearing and be relied upon as evidence of that conduct. Or they may disclose some fact not previously known to the parties which supports an allegation of apprehended bias. However, as the above passage makes clear, one needs to be careful not to invert the proper order of inquiry by first assuming the existence of reasonable apprehension.

[46]     In Vakauta v Kelly, the High Court held that the observations made about the doctor in the course of the judgment amounted to ostensible bias because they would lead to the conclusion, in the mind of the reasonable or fair-minded observer, that the judge was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand. This case makes clear that, in some circumstances, apprehended bias may arise or be apparent from reasons for decision.

(Citations omitted.)

42    The Minister relies on a passage from Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) (2024) 304 FCR 136 (Hot Wok) at [126], in which the Full Court applied Michael Wilson at [67]-[68], to hold that neither the outcome nor a particular finding of fact in the reasons could be used to demonstrate apprehended bias. However, the Full Court did not purport to exclude the use of the reasons for decision in determining a ground of apprehended bias in all circumstances.

43    The judgment of the Full Court in MZAEU makes it clear that reasons for decision may be taken into account in determining a ground of apprehended bias, at least where they are relied upon as evidence of some aspect of the conduct of the hearing or where they disclose some relevant fact not previously known to the parties.

Consideration

44    The first submission made by the applicant is that apprehended bias is demonstrated by factual findings made by the Tribunal that were illogical, unreasonable, insensitive, unsupported by the evidence or reflective of a misunderstanding of the evidence. The applicant also submits that the Tribunal made, “various terse, perfunctory and unreasoned findings”. In oral argument, the applicant embarked on an extensive excursion through the Tribunal’s reasons to demonstrate his complaints about the Tribunal’s findings. In part, the applicant seemed to be inviting the Court to engage with the merits of the findings.

45    I do not propose to set out these aspects of the applicant’s submissions in any more detail. It is enough to say that the applicant’s approach reflects what was described in Michael Wilson at [67] as the “fallacious argument” that the making of some appealable error demonstrates prejudgment of the case. It might be possible for there to be a case where findings of fact are so egregious as to suggest prejudgment (that may have been the approach taken in Bhatti), but this is not such a case. The Tribunal’s findings of fact were logically and reasonably open on the evidence before the Tribunal.

46    The applicant also relies on the opening four paragraphs of the Tribunal’s reasons for two different but related submissions. The first submission is that the antipathy the Tribunal expressed towards the applicant’s lawyers might cause a fair-minded observer to apprehend that the hostility towards the lawyers was visited on the applicant himself, such that the Senior Member’s mind was closed to his case. The second submission is that the reasons would give rise to a reasonable apprehension that the Tribunal had determined the applicant’s case was futile even before the evidence had been heard.

47    The Tribunal’s reasons commenced in the following way:

1.    A non-citizen who commits serious offences in Australia should expect to be removed. Mr Leo’o Olo is a non-citizen who inflicted grievous bodily harm on a stranger, hit his young son so hard it caused welts and bruising, and threw his ex-partner down with such force that she bounced into a wall. He should not expect to remain in Australia.

2.    However, there is money to be made from non-citizens who are desperate to avoid deportation, and whose loved ones are prepared to contribute their savings to pay a lawyer or migration agent to take their case to the Tribunal. There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money. Where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case that focusses on matters that favour the non-citizen and carefully deals with matters that do not. Witnesses should be proofed properly to elicit relevant information and drive home their duty to be truthful. Poor proofing leads to contrived or deficient evidence and creates a risk that information that favours the non-citizen will remain unknown unless a curious Tribunal uncovers it.

3.    Mr Leo’o Olo did not benefit from the efforts of his lawyers and lay witnesses to manipulate the Tribunal. The Tribunal is concerned with credible evidence and reasonable inferences. It is not persuaded by lies, speculation or exaggeration. Mr Leo’o Olo is going back to his country of origin. It is not a country that is poor, unstable, war torn, barbaric or oppressive. It is New Zealand.

4.    I am required to explain how I reached my decision. This is an expedited matter, and one of the Tribunal’s statutory objectives it [sic] to deal with matters efficiently. I will not waste time and Tribunal resources, which are public resources, addressing each and every disingenuous utterance made on the Applicant’s behalf. If that results in an appeal, it would create an opportunity for the Federal Court to provide clarity in this jurisdiction about the extent to which the Tribunal is required to engage with material that is obviously lacking in merit, particularly in circumstances where the sheer volume could raise a suspicion that there was an intention to create appeal points.

48    These paragraphs reveal several aspects of the attitude taken by the Tribunal towards the applicant, his case and his lawyers.

49    First, the Tribunal indicated that any non-citizen who commits serious offences in Australia, including the applicant, should expect to be removed. Although the applicant initially took issue with this comment, in oral submissions, the applicant’s counsel conceded that this comment was “probably not” wrong.

50    Second, the Tribunal indicated that it had regarded much of the evidence led by the applicant as not credible or reasonable and that it considered his removal to New Zealand would not cause him undue hardship. As I have indicated, the findings of fact made by the Tribunal do not inform the ground of apprehended bias.

51    Third, the Tribunal was highly critical of the applicant’s lawyers, accusing them of acting unethically by taking the applicant’s money instead of advising him not to proceed with an application for review that the lawyers must have known was futile. The Tribunal attributed to the lawyers a failure to “present an honest case” and properly proof witnesses, with the consequence that statements were “contrived or deficient” and contained “lies, speculation or exaggeration”. The Tribunal also condemned the “disingenuous utterance[s]” made on the applicant’s behalf, which apparently includes the lawyers’ submissions, and stated that the filing of such voluminous material raised a suspicion that their intention was to create appeal points.

52    It may be observed the Tribunal commenced by expressing its criticisms of the conduct of lawyers and migration agents in general terms, rather than specifically referring to the applicant’s lawyers. However, a fair-minded reader would infer that the criticisms were in fact directed at the applicant’s lawyers. That is because the apparently general criticisms were made in the course of reasons specifically concerning the applicant’s case and were followed by direct criticisms of the applicant’s lawyers.

53    The reasons make clear the frustration felt by the Tribunal with the perceived conduct of the applicant’s lawyers. The criticism is scathing and hostile.

54    In fairness, is should be acknowledged that some aspects of the Tribunal’s frustration are understandable. Some of the witness statements contain what appear to be obvious exaggerations, which the member attributed, at least in part, to them being drafted by the lawyers. The Tribunal was asked to consider a volume of material that could not realistically have affected the outcome, such as a claim that the best interests of as many as 37 children would be affected by any cancellation of the applicant’s visa. The lawyers also made some florid submissions that were obviously overblown. An example was a submission that the applicant’s voluntary work at a rugby union club coaching a children’s team and helping on the barbeque was, “crucial for the ongoing availability of sports and recreational opportunities in the area”. It is understandable that a busy Tribunal under time pressure to make its decision within the 84 days stipulated under s 500(6L) of the Migration Act would feel frustrated by the overblown way the lawyers elected to conduct the application.

55    Nevertheless, the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified. For example, the Tribunal could not know what advice had been provided to the applicant by his lawyers and so there was no apparent basis for the Tribunal’s insinuation that the lawyers failed to advise the applicant that his application was futile and that they acted without integrity by instead taking his money. The Tribunal’s statement that, “a lawyer or migration agent who takes [a non-citizen’s] case should present an honest case”, and its reference to, “every disingenuous utterance made on the Applicant’s behalf”, insinuated that the applicant’s lawyers had made dishonest submissions when there was no basis for such a view. There was also no basis for the Tribunal’s comment that the sheer volume of material could raise a suspicion that there was an intention to create appeal points. The Senior Member made no attempt to explain the basis for these snide comments. A fair-minded observer would reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers.

56    The approach of Moshinsky J in MZZLO is informative. His Honour was concerned with a ground of apprehended bias on the basis, relevantly, of a Tribunal member’s statements that a statutory declaration of the applicant was a confection of the applicant’s lawyer’s own making, that the lawyer was “on very, very, very dangerous ground”, and that the lawyer had sought to mislead the Tribunal which might provide grounds for a report of professional misconduct. His Honour at [56] cited R v Magistrate Taylor; Ex parte Ruud (1965) 50 DLR (2d) 444 at 450, where it was held that animosity by the magistrate towards the accused’s counsel provided ample evidence of bias and, “there would have been every likelihood in the eyes of the public, at least, that this bias would or might be visited on the accused”. His Honour concluded at [76]:

The member made a serious attack on the professional conduct of the applicant’s lawyer…Whether or not this was justified (and I do not think it was), it might reasonably be apprehended by a fair-minded lay person that the member was so influenced by what he perceived to be the lawyer’s improper or inappropriate conduct, that he might not bring an impartial mind to his assessment of the appellant’s case. In particular, because the perceived impropriety related to the preparation of the second statutory declaration — an important part of the material relied on by the appellant — it might reasonably be apprehended that the member would not bring an impartial mind to his assessment of this material, but rather would seek to vindicate the views he had expressed regarding the lawyer’s conduct. Further, another part of the material relied on by the appellant was the 27 page written submission provided to the Tribunal before the hearing... Given that this was signed by the applicant’s lawyer, it may well be apprehended that, given the member’s severe criticism of the lawyer’s conduct, he would not bring an impartial mind to the consideration of that submission.

57    In my opinion, the Tribunal’s hostile comments directed towards the applicant’s lawyers can be taken into account as relevant to the perception of a fair-minded observer. The Tribunal’s hostility was not apparent from the transcript of the hearing and only emerged in the reasons. Such hostility is in the category of a, “fact not previously known to the parties which supports an allegation of apprehended bias”, as described in MZAEU at [45]. Further, the Tribunal’s comments concerning the way the lawyers prepared and presented the case reflect the member’s state of mind, not only after, but before and during the hearing. They are therefore capable of informing the perception of a fair-minded observer as to whether the Tribunal might have closed its mind before having heard all the evidence and submissions. Taking the Tribunal’s comments into account for these limited purposes does not involve the errors described in Michael Wilson at [67] of inverting the proper order of inquiry, reasoning that the findings demonstrate the crystallisation of prejudgment, or reasoning that the outcome or some appealable error demonstrates prejudgment.

58    The Tribunal’s hostile tirade against the applicant’s lawyers was of the gravest kind, attacking their honesty and integrity as lawyers. The Tribunal plainly took the view that the witnesses were not “proofed properly” by the lawyers with the consequence that there was “contrived or deficient evidence”. The Tribunal indicated that the lawyers did not “present an honest case”. In my opinion, a fair-minded reader of the Tribunal’s reasons might reasonably apprehend that the Tribunal visited its animosity towards the applicant’s lawyers over their preparation and presentation of the case upon the applicant. In other words, a fair-minded reader might reasonably apprehend that the Tribunal may well have failed to bring an open mind to the evidence of the applicant and his witnesses and the merits of his lawyers’ submissions.

59    The Tribunal also commented that, “There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money.” This comment demonstrates the Tribunal’s opinion that the applicant’s lawyers ought to have assessed the case as futile, or doomed to failure from the outset, before they proceeded to charge the applicant fees for preparing and filing his material. The comment indicates that the Tribunal had itself assessed the case as futile, and suggests that the Tribunal had been able to make that assessment on the basis of the material that was filed by the lawyers (just as the lawyers ought to have done). In my opinion, the Tribunal’s comment suggests that the Tribunal had assessed the applicant’s case as being doomed to failure after reading the material and before hearing any oral evidence and submissions. It is apparent from the transcript that the Senior Member had read the witness statements prior to the hearing.

60    In the following sentence, the Tribunal did go on to say that where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case. This sentence suggests that even if the applicant’s lawyers had not in fact assessed the case as futile, they had not then gone on to present an honest case. I do not consider that the sentence detracts from a perception that the Tribunal might have made an assessment that the case was futile prior to hearing the oral evidence and submissions.

61    In my opinion, the comments of the Tribunal concerning futility can also be taken into account as relevant to the perception of a fair-minded observer as disclosing a relevant matter not previously known to the parties. Until the disclosure in the reasons, there was no basis for any apprehension that the Tribunal might have made an assessment that the case was futile prior to the hearing.

62    Leaving aside the Tribunal’s reasons for decision, there are aspects of the Tribunal’s conduct during the hearing that also contribute to an apprehension that the Tribunal might not bring an open mind to its consideration of the evidence called and given by the applicant.

63    The applicant submits that the Tribunal effectively took the role of a contradictor by engaging in extensive questioning of the witnesses that crossed over into cross-examination. The respondent submits that the Tribunal merely engaged in robust questioning that was within acceptable limits.

64    In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, Flick J (Allsop CJ and Robertson J agreeing) at [24] cited with approval the observation of Barker J in SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] that, “[r]obust and forthright testing of the appellant’s claims by the Tribunal does not sustain a finding of apprehended bias”. Justice Flick also observed at [28]-[29] that where it is argued that exchanges during the hearing evidence a predetermination by the Tribunal, more must be shown than mere predisposition to a particular view. The issue is one of predetermination, not predisposition.

65    I accept the applicant’s submission. Although the Minister was legally represented, the Tribunal’s questioning of almost all the witnesses was substantially more extensive than that of the Minister’s lawyer. The Senior Member sometimes took over the cross-examination from the Minister’s lawyer and, in respect of one witness, Ms Shrub, commenced cross-examining the witness even before the applicant’s lawyer had adduced her evidence-in-chief. Much of the Senior Member’s questioning seemed designed to discredit the witnesses and expose inconsistencies between them. Her cross-examination of witnesses was frequently hostile, sarcastic and belittling. To adopt the description given by Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [82], the questioning of the applicant appeared calculated to undermine the applicant’s case, rather than to facilitate a non-partisan investigation into the facts.

66    It is not possible to set out all of the passages from the transcript over the three days of the hearing that lead to these conclusions. However, the following example can be given, involving the member’s questioning of Ms Parke, the applicant’s partner, over a single aspect of her evidence, namely that the applicant’s removal from Australia would result in financial hardship for her and her children:

SENIOR MEMBER: Is there a particular reason that you live in the region you do, because that’s very high rent?---Because it’s cheap rent. This is the cheap – this was the cheapest area on the Gold Coast.

Do you have to be on the Gold Coast?---Well, I guess you could be – it was, like, in where I wasn’t moving too far away from my mum and dad, but it was away from my ex-partner who we had – there was things going on, but I was close enough to still be able to go help my mum and dad when I need to, and further down the - - -

Where do they live?—They live in a town called Meerschaum Vale but it’s, like, near Ballina or Byron Bay if you don’t know that area. So about two hours - - -

All right. Okay. All right. Yes. All right. I mean, but surely you realise that when families are struggling financially, they move to areas where they can afford to live?
---So when I first moved here, I had a job and I was working, and then my children’s father died, and I stopped working and spent all – have been living off my savings from the house. It’s as bad as what it sounds. It’s not good.

Okay. That seems to have nothing to do with Mr Leo’o Olo and whether he stays here or goes away. That’s your choice. You’ve chosen to live where you live. It looks like you haven’t looked beyond the Gold Coast for an area where you would pay considerably less rent?---There is – this is a cheap area. This is cheap rent. This is what they would call cheap rent.

I’m just looking at realestate.com. I’m looking at Logan which is south of Brisbane, not too far from the Gold Coast, and there’s – there are properties – three-bedroom properties for 350 a week?---But like I said my parents live in – my parents live in New South Wales, and I try to see them as much as I can, and when I moved here, my kids’ dad was still alive. I wasn’t able to move a certain amount of kilometres away from him into a different state. There’s rules, you can’t - - -

Yes, he’s not alive anymore?---I have a lease that’s signed. I can’t afford to break a lease. I don’t want to uproot my children from the school that they’re in. Their lives have – like, they’ve had a lot of trauma. I don’t want to uproot them. We’re stable here.

Okay, so it’s clear to me that you are choosing - - -?---The therapist that we - - -

You’re choosing to live where you are?---The therapist that we see is also south. I have nothing up north, and when I go to see my parents, I would be even further away. I don’t want to move them. They’ve – where’s – not at this point in time, and I can’t – I can’t break my lease. It’ll cost me thousands of dollars that I don’t have.

How long is the lease? Is it a year?---Till – when we moved in here, we signed a two-year lease and then I renewed it in March, and me and Alovale were together and it was a stable – it was – it was working out. That was fitting into our lives.

I mean, do you understand that it’s a landlord’s market and you could break the lease by giving enough notice for the landlord to bring someone else in?---Do you know that you have to pay four weeks rent to break a lease up front?

All right. I don’t think we’re getting anywhere here. [The applicant’s counsel] go ahead.

67    The Senior Member, as Kirby A-CJ put it in Galea at 281, appears to have “moved into counsel’s shoes” and “into the perils of self-persuasion”.

68    The applicant submits that apprehended bias is demonstrated by the fact that although the Minister had only required the applicant and two witnesses for cross-examination, the Senior Member said:

I’ve pointed out some pretty serious concerns in those witnesses’ written evidence. Its really up to the applicant whether he wants to ask the Tribunal to take that evidence into account. It’s not worth much as it is right now.

The applicant’s lawyer, faced with the Tribunal’s clear view, then decided to call all but two of the witnesses.

69    In Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59, the Full Court held at [32] that the Tribunal’s statutory function requires it to form its own view as to the correct and preferable decision and, subject to providing procedural fairness, it is not bound by the way the parties present the case. I do not consider that the Tribunal’s indication of its views about the reliability of witness statements, even in circumstances where the Minister’s legal representative had not taken that issue, suggests any reasonable apprehension of bias. Nevertheless, the Tribunal’s comment reveals why the Tribunal proceeded to cross-examine the witnesses as it did.

70    I accept that the Senior Member’s extensive and often hostile questioning of the witnesses might cause a fair-minded observer to perceive that she had effectively taken on the role of a contradictor. I also consider that a fair-minded observer might regard the Tribunal’s cross-examination as designed to vindicate the Tribunal’s predetermined view that the lawyers had not “presented an honest case” and that the statements were “contrived or deficient”.

71    In respect of a number of witnesses, just after the witness had taken an oath or affirmation to tell the truth, the Senior Member said, “I just want to give you a warning here that it is an offence to knowingly give false evidence to the Tribunal”, or words to that effect. I accept that a perception might arise that, notwithstanding the witnesses having taken an oath or affirmation, the Tribunal had a predetermined expectation that they would give false evidence that made it necessary to give the additional warning. While this factor might not be critical on its own, when taken together with the nature of the cross-examinations that ensued, it adds weight to the proposition that a fair-minded observer might reasonably apprehend that the Senior Member had closed her mind to persuasion.

72    The applicant tendered approximately 15 minutes of an audio-visual recording containing ten vignettes of the hearing before the Tribunal. An aide memoir accompanying the video asserts that the video shows relevant body language of the Senior Member (including raising her eyebrows, shaking her head in disbelief, smirking, and sighing) as well as the Senior Member’s use of a dismissive and aggressive tone towards witnesses. I accept that the video does demonstrate these matters.

73    However, it is necessary to bear in mind that the hearing occurred over three days during which the Tribunal heard many hours of evidence from a number of witnesses and the applicant was only able to point to ten incidents. As the Minister submits, the authorities make it clear that occasional displays of impatience, irritation or insensitivity will not generally constitute disqualifying conduct: AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at [20]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs at [81]; SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31], [37]-[39]. I do not regard the audio-visual recording as assisting the applicant’s case.

Conclusion

74    Applying the three-step analysis identified in Ebner and QYFM, first, the factors that might lead the Tribunal to decide the case other than on its legal and factual merits are that the Tribunal:

(1)    expressed hostility towards the applicant’s lawyers over their preparation and presentation of the applicant’s case;

(2)    made a comment suggesting that the Tribunal had assessed the applicant’s case as futile even before hearing the evidence and submissions;

(3)    effectively took on the role of a contradictor by engaging in extensive and often hostile cross-examination of witnesses; and

(4)    warned a number of witnesses that it was an offence to knowingly give false evidence to the Tribunal, suggesting that the Tribunal had a predetermined expectation that they would give false evidence.

75    The second step requires an articulation of the logical connection between the matters identified and the feared deviation from the course of deciding the case on its merits. The connections are, respectively that:

(1)    as the Tribunal attributed serious misconduct to the applicant’s lawyers, the Tribunal might not bring an open mind to consideration of the content of the statements of the applicant’s witnesses prepared by the lawyers or to the lawyers’ submissions;

(2)    an assessment of the case as futile prior to hearing the oral evidence and submissions would indicate that the Tribunal had predetermined the case;

(3)    effectively taking on the role of a contradictor created a conflict of interest of the type described in Isbester that is incompatible with the role of an impartial adjudicator.

(4)    warning the witnesses that it was an offence to knowingly give false evidence to the Tribunal, might indicate that the Tribunal had a predetermined view that they would otherwise give false evidence.

76    The third step requires the applicant to establish that it is reasonable that the fair-minded lay-observer, who has knowledge of the legal, statutory and factual context in which the decision is to be made, might have an apprehension of bias. In my opinion, considering the four factors in combination, a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the applicant’s application for review.

77    I will order that a writ of certiorari issue quashing the decision of the Tribunal. I will order that a writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine the appellants’ application according to law.

78    I will order that the Minister pay the applicant’s costs of the proceeding.

Associate:    

Dated:    22 January 2026