Federal Court of Australia

FQB24 v Minister for Immigration and Citizenship [2026] FCA 548

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 1, 2, 3, 6 and 8 of the interlocutory application filed 9 April 2026 be dismissed.

2.    Paragraphs 4 and 5 of the interlocutory application be reserved.

3.    The costs of the interlocutory application be reserved.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

FEUTRILL J:

1    The appellant filed an interlocutory application on 8 April 2026 for orders that I recuse myself. The grounds of the application are that there is a reasonable apprehension that I may not bring an impartial mind to the further conduct of the appeal arising from the conduct of a hearing on 5 March 2026, at which it is alleged there were interruptions and premature conclusions; pre-emptive costs; adoption of the Minister’s (first respondent) procedural framework; incorrect statements of law regarding transcript powers; failure to give reasons; unequal treatment; reliance on the Minister for procedural matters; structural unfairness in deadlines and directions; conduct consistent with a judge entering the arena or appearing to adopt the position of one party, contrary to principle, and the balance of convenience strongly favours recusal. The application also requests that certain orders made on 5 March 2026 be vacated, that the question of transcript and access to audio, together with issues concerning the accuracy of the transcript, completeness and access to underlying audio, that the matter be relisted before a different judge of the Court, and that the newly allocated judge consider and determine certain matters, including the integrity of the transcript. The application requests that the proceeding be case managed afresh, with new dates for, amongst other things, hearing the appeal, costs be reserved, and such other orders as the Court deems appropriate.

2    Insofar as the balance of the orders sought on the application are concerned, other than recusal, I am not able to deal with those until first dealing with the question of whether or not I ought to recuse myself. The substance of the application is also in part that orders be made setting aside the orders made on 5 March 2026 essentially on the ground of a failure to accord procedural fairness due to a reasonable apprehension of bias. Insofar as the application for recusal relates to the issues before the Court on 5 March 2026, it is, of course, too late for an application to be made to recuse myself. Those orders were made at that time, and the orders have been perfected. To the extent there is a challenge to those orders on the grounds of procedural fairness, the appropriate mechanism for so challenging them is an appeal from those orders if leave to appeal from a matter of practice procedure were granted. However, the application is also that by reason of the conduct of that hearing, there is a reasonable apprehension of bias relating to the appeal itself.

3    The principles applicable on an application for recusal on the ground of reasonable apprehension of bias are well established. The governing principle is whether 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: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The application of this principle requires two steps. First, identification of what it is alleged might lead a judge to decide a case other than on its legal and factual merits. Second, there must be a logical connection between that matter and the feared departure from the judge deciding the case on its merits. After those steps have been taken, the reasonableness of the asserted apprehension of bias can be assessed: Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).

4    In the application of the test, although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour. Thus, disqualification is only made out by firmly establishing that there is a reasonable apprehension of bias by reason of pre-judgement: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 (Mason J).

5    While the fair-minded lay observer is not assumed to have a detailed knowledge of the law or character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The fair-minded lay observer will be aware of the question the judge is tasked with deciding and its legal, statutory and factual context: Director of Public Prosecutions (Vic) v Smith [2024] HCA 32; 418 ALR 212 at [95] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). Further, the test is to be applied to a professional judge whose training and oath or affirmation require the judge to discard the irrelevant, immaterial and the prejudicial: Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), cited with apparent approval in Johnson at [12].

6    Articulating the logical connection between the identified source of bias and the feared deviation from the course of deciding the case on its merits requires the party fearing bias to identify an objectively credible reason why the judge might lack the requisite impartiality to decide the legal and factual issues. Merely determining interlocutory applications against a party or making a procedural order that affects a party in a particular way does not, without more, provide an objectively credible reason for fearing that a judge will not decide other legal or factual issues according to the merits.

7    Amongst other things a lay observer will be taken to know is the nature and extent of the Court's obligation to ensure a fair hearing, in particular in circumstances where one of the parties before the Court is not legally represented. It is axiomatic that a court has a duty to ensure a fair hearing. And, in the case where at least one of the parties is not legally represented, that can extend to providing a degree of assistance to a litigant in person. A summary of the principles that are applicable in those circumstances may be found in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]-[57] (Markovic, Derrington and Anastassiou JJ); SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J, Allsop CJ and Mortimer J agreeing), citing Hamod v New South Wales [2011] NSWCA 375 at [311]-[316] (Beazley JA, Giles and Whealy JJA agreeing). Relevantly, these may be summarised in the following terms.

(1)    The Court should provide such assistance to a litigant in person as is necessary to diminish the disadvantage of that person that exists by reason of self-representation.

(2)    In practical terms the Court may find it appropriate to provide the following kinds of assistance to a litigant in person:

(a)    ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter;

(b)    ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous; and

(c)    ensuring the litigant has not, because of lack of legal skill, failed to claim rights or put forward arguments.

(3)    The role of the Court is to be constrained by its concurrent duty to remain impartial. Therefore, the obligation of fairness does not extend to providing advice to a litigant in person.

(4)    A balance must be maintained between assistance and ensuring a fair trial for all parties. Therefore, the extent of the obligation in any particular case is idiosyncratic and depends upon the litigant, the nature of the case and the litigant in person's intelligence and understanding of the case at hand.

8    None of the grounds the appellant has identified provide a logical connection for a lay observer to think that the Court might not decide the questions in the appeal impartially. All the matters identified relate to the particular orders made following a hearing on 5 March 2026. For that reason, the lay observer would not reasonably apprehend that the Court would not bring an impartial mind to bear on deciding the matters in the appeal. That said, it is necessary to deal with each of them in turn to demonstrate that not only is there no logical connection between those grounds and the asserted fear of departure from deciding the case impartially, but even if there were such a connection, there is no substance in any of the contentions.

9    The first ground relied upon is that there were interruptions and premature conclusions, and the appellant relies on paragraphs [14]-[17] of his affidavit. Paragraphs [14]-[17] deal with an exchange between the bench and the appellant relating to the interpreter and the contents of an affidavit upon which the appellant wished to rely at the hearing that contained information that was of a legally professionally privileged nature. It is said that the interruption created an appearance of pre-judgement of the interpreter issue and dealing with the question of the affidavit gave rise to the appearance that the Court was aligning with the Minister's counsel rather than assisting a self-represented litigant. The full exchange in context and without selective quotation is as follows:

[THE COURT]: I just beg your pardon. I didn’t quite catch what you said. You obviously speak English. You can understand me. Do you need an interpreter for the proceeding or not?

[THE APPELLANT]: Not particularly.

[THE COURT]: Okay. All right. Well, if you – we have an interpreter here, obviously. If there’s anything that comes up in the course of the hearing, and you would prefer to have it interpreted into Swahili, I think it is, then just let me know, and we can have that take place if you need to better understand what has just happened.

[THE APPELLANT]: Thank you for that, your Honour.

10    The Court then moved to the question of the affidavit. The Court identified that the appellant wanted to make an application for an adjournment of the appeal, and that needed to be dealt with first. The Court identified an affidavit upon which the appellant wished to rely, and then said:

[THE COURT]: … What would normally happen is you would read the affidavit on the application, and it then becomes part of the evidence on that application. But I have noticed that your affidavit refers to communications you have had with your former legal representative. Those communications would usually be subject to legal professional privilege and would not be disclosable, ordinarily, to me or to the Minister’s counsel. So before you read it, I just wanted to make you aware of that. So once it’s read – and it may have already been provided to the Minister via the portal. I don’t know. But once it’s disclosed, then the privilege over the communications is lost. Do you understand that?

[THE APPELLANT]: I do understand that, your Honour.

11    It was then explained that the appellant did not have to read the conversations into evidence as the relevant part of the evidence was the fact of the communications and their timing that were relevant to the application for an adjournment. After providing that explanation, the Court said:

[THE COURT]: If you want me to read the whole affidavit, I will read it into evidence.

The appellant then said:

[THE APPELLANT]: Yes, your Honour. I’m happy for you to consider all the content of my affidavit.

12    After that exchange, counsel for the Minister was asked if she had seen a copy of the affidavit, and she began to make a submission that she was contemplating making similar submissions about the consequences of the reading of the affidavit as that which the Court had outlined to the appellant. The Court then said ‘Well, it’s now waived’. Counsel for the Minister responded ‘It is now waived’.

13    Those exchanges are demonstrative of the Court giving the appellant notice of what the effect of what he was proposing to do would have on his legal rights, consistent with the Court's obligation to take steps to ensure that the disadvantage of a self-represented litigant is, to the extent that is fair, diminished. It was explained to him what the effect of what he was about to do would do, and he nonetheless chose to have the affidavit read into evidence. There is nothing in either of those exchanges that could possibly lead to the fair-minded lay observer reaching the conclusion the Court had pre-judged the question of an interpreter or in any way had favoured the Minister's counsel in the submissions that were made.

14    The next topic is pre-emptive costs judgment. This is dealt with at paragraphs [18]-[19] of the affidavit, and it said an exchange relating to the application for an adjournment created the appearance of pre-judgement of the costs issue. Again, that exchange, in its entirety, is:

[THE COURT]: Yes. All right. So it’s your application, Mr Appellant. You can make submissions to me now about the adjournment. Can I just say that I understand – and I will just confirm this with Ms Hofmann – the Minister doesn’t oppose an adjournment, at least for today. It would ordinarily be the case that if it is adjourned, it would be on the basis that the Minister’s costs thrown away would be payable by you, even though the circumstances of the adjournment are somewhat unusual in the sense that your counsel has withdrawn recently. But there are other aspects to the reason you are seeking an adjournment, which I would want to hear from you about, namely, the issue about the transcript.

15    That was an explanation of the usual position where a party is seeking an adjournment and the indulgence of the Court. It was given so that the appellant would have knowledge of that position and to provide him with an opportunity to make submissions as to why the ordinary position, which is the costs thrown away be paid, ought not be made. No submissions were made about that and ultimately an order was made to the effect that the appellant pay the costs thrown away as a consequence of the adjournment. Again, that is an example of the Court exercising its function of drawing to the appellant's attention matters about which he ought to have been aware so that he would have an opportunity to make submissions about them, which he did not choose to do.

16    The next topic is adoption of the Minister's procedural framework, and this is dealt with at paragraphs [66]-[69] of the affidavit. Orders were made to regularise the proceeding. Paragraphs [1]-[3] of the orders made on 5 March 2026 were in terms of a consent order that had been signed on behalf of the appellant by his legal representative before that legal representative ceased acting for him. Paragraph 4 was an order that was made to facilitate the appellant placing further evidence before the Court. That order was made in circumstances in which the appellant had indicated that he had available to him audio of the hearing before the Administrative Appeals Tribunal but did not have a transcript.

17    Orders were made to facilitate the production of the audio at the appeal, should the appellant wish to do so, identifying the relevant parts of the audio that he wished the Court to listen to on the appeal if he had wanted to make that application. Given that the orders were made in respect of what had been previously consent orders, there is nothing in the appellant's contention that there had been an adoption of their respondent's framework. They were largely also orders that were to the advantage of the appellant as they related to amendments to the grounds of appeal and to the timeframes within which various pre-appeal steps were to have been taken.

18    The next topic upon which the appellant asserts the Court demonstrated a reasonable apprehension of bias is incorrect statements of law regarding transcript powers. This is dealt with at paragraphs [23]-[34] of the affidavit. Reference is made in those paragraphs to s 23 of the Federal Court of Australia Act 1976 (Cth) and reg 2.18 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth). The appellant contends that these provisions confer power on the Court, in effect, to order the production of a transcript by the transcript providers of the AAT and the Federal Circuit and Family Court of Australia (Division 2) to this Court in the exercise of its appellate jurisdiction.

19    To understand the submission, it is necessary to also make reference to the application that had been made that was being dealt with on 5 March 2026. One of the orders sought on that application was that the respondent, that is to say the Minister, provide the applicant within 14 days a copy of the AAT transcript and the transcript of the Federal Circuit and Family Court in the hearing below. Therefore, that was the framework within which the Court was considering the question of whether it had power. Submissions had been made earlier by the Minister's counsel to the effect that neither of those documents was in the possession of the Minister. It was explained to the appellant at the hearing that in the case of transcripts of proceedings in this Court, there is an arrangement with the transcript provider and parties can apply for the production of transcripts, and that on occasion with dispensation, the Court will direct the provision of transcripts to people who are not able to afford to pay for its production.

20    That is a position that relates to proceedings in this Court. With respect to the position in other courts or the AAT, the appellant was informed that the Court did not consider it had power to compel the transcript provider to produce a transcript. And that remains the case. It is not considered that the Court has power to compel the transcript provider to produce a transcript. It was explained to the appellant that if a transcript was in existence, there may be means by which that transcript could be produced to the Court. These were matters that were left with the appellant to deal with, the Court having discharged its function of making the appellant aware of the way in which the practice and procedure of the Court operated.

21    The reference to the Regulations is misconceived as they relate to the fees charged by this Court or the Federal Circuit and Family Court and provide that in certain circumstances there can be waivers of those fees, none of which apply with respect to the transcript. The point here is that the Court refused to make an order of the kind that was sought because it was not satisfied that it had the power to do so. If the Court was wrong about that, then of course that again may be a matter that could be the subject of an appeal, but nothing that has been identified in the materials provided to the Court on the application presently suggests that the decision was wrong or that it would lead the fair-minded lay observer to reach a conclusion that there had been pre-judgement of that issue or any other issue in the proceeding.

22    As matters appear to have transpired from the balance of the affidavit of the appellant, an application was made to the Federal Circuit and Family Court for production of the transcript before the primary judge and evidently dispensation to produce that to the appellant was obtained and it was produced to him on 27 March 2026. Again from the affidavit material, it appears that the appellant disputes the accuracy of it, but no application has been made to produce the transcript of the proceeding before the primary judge to this Court as a consequence of those arrangements. So, not only was the explanation given at the time, in my view, accurate as to the absence of power, but the explanation given as to the means by which the transcript could be produced was accurate and was in fact followed by the appellant in this case. None of that would lead a fair-minded lay observer to conclude that the Court had pre-judged either the matters before the Court on 5 March 2026 or the appeal more generally.

23    The next topic is unequal treatment of and deference to the Minister. This was referred to in paragraphs [35]-[37] of the affidavit whereby the appellant submits that the Court repeatedly prioritised the Minister's convenience over his, for which he gave two examples.

24    The first related to finding a convenient date for the adjournment of the appeal. The appellant did not have any dates that were inconvenient to him and he had been seeking a longer period of adjournment than what was ultimately granted. There were exchanges with the Minister's counsel about dates convenient to her, including having regard to school holidays, which were accommodated. It is ordinary procedure in matters of this nature where adjournments are sought to have regard to the availability and convenience of the legal representatives of parties and the fair-minded lay observer would be aware of that.

25    The second related to the attendance in Court of a McKenzie Friend. The appellant indicated that he wished to have a McKenzie Friend available to assist him at the hearing of the appeal. The Court was minded and remains minded to permit the use of a McKenzie Friend. The issue here arose because, if the relevant person were to attend Court, it would also be necessary for arrangements to be made for that person to be transferred from immigration detention as that person is also in immigration detention.

26    The Court has a process by which it requests the executive to bring persons in immigration detention to the Court to appear in person. It is done by way of request and typically the request is acceded to by the executive. The Court does have power to compel the executive to bring people to Court that can be exercised on occasion. Typically, in the case of immigration cases, it is not necessary to use such a power known as a bring-up order. However, the exchange with the Minister's counsel concerned the extent to which the executive would accede to a request of the Court to bring to court, not the person directly involved in the proceeding, but an assistant by way of a McKenzie Friend.

27    An indication was provided after the court hearing by way of communication with my chambers that the Minister was not prepared to agree to the McKenzie Friend being transported to the Court under similar arrangements that would apply to the appellant himself. In those circumstances, the appellant was provided with an opportunity to either attend in person without a McKenzie Friend or attend via video-link with a McKenzie Friend at immigration detention.

28    It was not necessary at the time of the case management hearing to address what, if any, order may or may not be made with respect to bringing in the McKenzie Friend. It was simply an exchange to ascertain whether or not the executive, through the Minister, would agree to a person being brought into court from detention who was not the relevant party to the proceeding. And, again, all of that knowledge would be imputed to the lay observer, and there is nothing in the exchange that would indicate pre-judgement of any issue in the appeal by the Court.

29    The next topic was structural unfairness in deadlines and directions, and this is addressed at paragraphs [40]-[44] of the affidavit. And, the example given was in relation to the timeframe around which the Court ordered the production of any application to receive further evidence by 3 April 2026.

30    The time was approximately a month after the hearing on 5 March 2026. It primarily related to the audio of the hearing before the AAT. The appellant had indicated in the course of the exchanges with the Court that he had the audio, he could listen to the audio, and it was explained to the appellant that if he identified the relevant parts of the audio that he wished the Court to listen to, he could do that and make an application to the Court for the Court to receive the audio as further evidence in the appeal as it did not appear that the audio or any transcript of the proceeding before the AAT had been evidence that was before the primary judge.

31    Again, all of that was explained in the context of ensuring the disadvantage of the appellant as a litigant in person was ameliorated and that the substance of what he was seeking to do, which was to put before the Court evidence of what had transpired at the AAT, could be done in a way that would accommodate his desire to have the Court listen to that or become aware of that evidence and overcome what appeared to be his impediment at the relevant time, which was an absence of a written transcript. The timeframe, in circumstances where evidently the audio was available and could be listened to, is not a timeframe that is obviously unachievable or inherently unfair or too short. Of course, it was always open to the appellant to have applied for an extension of time within which to complete that step if, for some reason, he was unable to do so. Again, all of that would be known to the lay observer and the lay observer would have not reached a conclusion from any of that that the Court might not decide the appeal impartially.

32    There was another contention that the conduct of the Court was consistent with a judge ‘entering the arena’. The appellant relied primarily on the same parts of his affidavit as he relied on for the other contentions and, for the same reasons that I have already given, none of those provide any basis for a lay observer to conclude that the Court might not decide any issue in the appeal impartially.

33    There was another assertion that there was a failure to apply the protective duties owed to what was described as a forced self-represented detainee. I have already explained what the applicable duty is of the Court with respect to people who are litigants in person and that each of the relevant things about which the appellant has complained are in fact instances of the Court discharging that duty.

34    It is also not accurate, really, to describe the appellant's situation as one of forced self-representation. The appellant had legal representation up to shortly before the first appeal date of the hearing. And, while legally represented, the appellant's grounds for appeal were amended and written submissions were filed in support of the appeal. An issue arose with respect to who would make submissions with respect to ground 3 of the appeal as the appellant's legal counsel, in substance, refused to advance part of the submissions himself on that issue. The appellant filed separate written submissions and there was a proposal that the legal representative address the Court on all issues other than those the subject of the appellant's written submissions.

35    In an affidavit the appellant filed on 4 March 2026, which was read on 5 March 2026, he deposed to the contents of essentially the legal advice he had received from his legal representative. Without going into the details of what precisely the advice was, in substance the legal representative was not prepared to advance a submission that the legal representative did not consider had sufficient merit in the discharge of that person's paramount obligation to the Court. The appellant was not prepared to accept his counsel's advice and, as a consequence, the counsel, I infer, felt compelled to withdraw from legal representation.

36    I accept that the appellant finds himself in a situation where he is now representing himself, but it is not a circumstance where he does so without having had the assistance of legal representation to prepare most of the written submissions and grounds of appeal prior to the appeal. Therefore the matter in question really is confined to what, if any, additional evidence or material the Court should receive with respect to the transcript. For the reasons I have already given, the Court has taken steps to alleviate the disadvantage of the appellant with respect to practice and procedure and given him guidance on how to achieve what it is he may wish to achieve by bringing additional material before the Court on ground 3 for the hearing of the appeal.

37    Amongst other things, in the course of the submissions, the appellant also appeared to complain of a failure to give reasons. Exactly how that assertion features in his contention of an apprehension of bias is not clear, but adequate reasons were given for the orders made as part of and during the exchanges with the appellant and counsel for the Minister on 5 March 2026. It is not necessary in every case, on every issue, for every order made in the Court to deliver separate ex tempore or written reasons for those orders. That is particularly so where the hearing is with respect to a relatively routine matter such as an application for an adjournment.

38    The reasons for refusing to make the orders with respect to transcript production were essentially given in the course of the exchanges with the appellant and with the Minister. As I have mentioned, to relieve against the potential disadvantage of the appellant, the Court provided and made an order that would allow him to have produced the audio of the AAT hearing on the appeal should he have wished to do so. The fair-minded lay observer would be aware of those exchanges and that reasoning, and none of that would lead the fair-minded lay observer to consider that the Court may not decide the appeal impartially or, indeed, the application that was before the Court on 5 March 2026 impartially.

39    Therefore, for all of the foregoing reasons, the appellant has not demonstrated that a fair-minded lay observer might think that the Court might not decide any issue in the appeal impartially, and the application for recusal is dismissed.

Associate:

Dated:    5 May 2026