Federal Court of Australia

Kastrioti v Australian Border Force [2026] FCA 1024

ORDERS

THE COURT ORDERS THAT:

1.    Prayer 1 of the applicant’s interlocutory application dated 20 July 2026 (the Recusal Application) be dismissed.

2.    The applicant pay the respondents’ costs of the Recusal Application.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

MOORE J

1    By prayer 1 of his interlocutory application dated 20 July 2026, the applicant, Mr Kastrioti, seeks an order that I recuse myself from further dealing with this proceeding.

Background

2    Mr Kastrioti currently is in immigration detention. He has brought these proceedings alleging various deficiencies in decision-making and conduct by the respondents in connection with his immigration status. By an amended originating application for judicial review dated 12 December 2025 (Amended Originating Application), Mr Kastrioti seeks broad-ranging relief, including orders that the respondents correct false records, produce and return documents, ensure correspondence is accurate, confirm that no mechanical restraints will be used except as a last resort subject to medical and legal oversight, refrain from removing Mr Kastrioti until other relief is granted, and various other orders. This application is brought on various grounds, grouped under the headings “Fraudulent and Misleading Conduct”, “Denial of Procedural Fairness”, “Abuse of Power and Retaliation”, and “Breach of Duty of Care and Human-Rights Standards”.

3    Mr Kastrioti has indicated that he wishes to further amend the Amended Originating Application, although he has not yet brought forward any amended document. A further issue has arisen because the Third Respondent has identified that it is not the correct entity to respond to the relief which Mr Kastrioti seeks. In other words, it says that Mr Kastrioti has sued the wrong entity, and identifies what it says is the correct entity.

4    On 13 November 2025, 20 February 2026 and 24 February 2026, there were three case management hearings before Judicial Registrar Cody. Judicial Registrar Cody, at the request of Mr Kastrioti, made an order changing the name by which he was to be referred in the proceedings and otherwise made some case management orders to regularise the preparation for hearing of any application by Mr Kastrioti to further amend the Amended Originating Application and any steps to deal with the issue of the correct identity of the third respondent to the proceedings.

5    On 25 February 2026, I made replacement case management orders which superseded the case management orders made by Judicial Registrar Cody (with the exception of the change of name, which was an order sought by Mr Kastrioti and therefore about which he does not complain). From that point, the case management orders made by Judicial Registrar Cody were of no further relevance.

6    Mr Kastrioti made an application for the Court to provide to him, at the Court’s expense, the transcript of the three case management hearings before Judicial Registrar Cody. Mr Kastrioti sought that from the Registry. He was informed that any order to that effect would need to be made by a Judge, and that matter came before me at a case management hearing on 21 May 2026. On that occasion, I declined Mr Kastrioti’s application to be provided, at the Court’s expense, with transcripts of the three case management hearings before Judicial Registrar Cody. On that occasion, Mr Kastrioti was not able to identify how those transcripts would be relevant to the issues raised in his Amended Originating Application or otherwise how what happened at those case management hearings affected in any material way the position of Mr Kastrioti going forwards. I therefore refused his application on the basis that the case management hearings before Judicial Registrar Cody did not affect any of Mr Kastrioti’s substantive rights or have any further effect on him (except for the change of name, which he sought). I concluded that, in those circumstances, there was no basis for the provision of the transcripts to Mr Kastrioti because there was nothing arising from those case management hearings for Mr Kastrioti to seek to review or appeal or otherwise change. I did, however, organise for the provision to Mr Kastrioti of the transcript of the hearing on 21 May 2026, which recorded my reasons for not acceding to Mr Kastrioti’s application for an order for the provision of transcripts of the hearings before Judicial Registrar Cody.

7    Mr Kastrioti has since lodged with the Registry an application for leave to appeal from my decision not to order provision of the transcripts of the hearings before Judicial Registrar Cody.

8    At the case management hearing on 21 May 2026, I also dealt with some lengthy notices to admit facts which Mr Kastrioti had served on the respondents. The respondents had brought applications to set aside those notices to admit. I determined that I would not accede to those applications by the respondents, and therefore ruled in Mr Kastrioti’s favour on that question. Instead, I made an order extending the time for the respondents to respond to the notices to admit facts. The time to respond had otherwise expired. The respondents had not responded to the notices to admit because they were moving to set them aside.

The present application

9    By interlocutory application dated 20 July 2026 (Interlocutory Application), Mr Kastrioti seeks various relief, including an order that I recuse myself, an order staying the proceedings pending determination of his application for leave to appeal from my case management ruling on transcripts, and various orders in the nature of “directions” to the Registry and the conduct of inquiries (e.g. “Judicial inquiry into, and determination of, the causes of the non-issuance and administrative delay of transcripts by the Court Registry, the Judicial Registrar (Christine Cody), and any relevant judicial officer involved in the applicant’s case”. This application came on for hearing before me on 29 July 2026.

10    I must deal with the recusal application first, being prayer 1 of the relief sought.

11    Mr Kastrioti relies upon a supporting affidavit dated 20 July 2026 (together with its annexures). I have had regard to this material. The affidavit includes at Annexure AK-3 a copy of the transcript of the hearing on 21 May 2026 together with what is described as a “Skeleton”, being a 20-page document identifying 54 alleged errors and a more detailed description of each alleged error. Mr Kastrioti also relies upon an email of 29 July 2026 and the attachments to that email. I have also had regard to earlier material lodged by Mr Kastrioti to the extent that it is relevant. I have reviewed all of the material referred to in this paragraph and taken it into account.

Consideration

12    As a preliminary matter, Mr Kastrioti has submitted that I cannot hear an application for my own recusal. That proposition is incorrect: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [74] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

13    The relevant test for disqualification for apprehended bias 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 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, Kiefel CJ and Gageler J observed at [38] (footnotes omitted):

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.

14    Mr Kastrioti has not undertaken this task. In his written and oral submissions, Mr Kastrioti has raised many points said to constitute errors in my conduct of the case management hearing on 21 May 2026. It is said that there were 54 errors. However, mere error by itself does not constitute bias or fairly raise a reasonable apprehension of bias. Further, if a judge rules against a party, that does not, without more, suggest that the judge is biased against that party.

15    At the hearing of the application, I raised this issue with Mr Kastrioti and asked him to identify which of the alleged errors suggested that I would decide any other issue in the proceedings other than on its legal and factual merits, and why. Mr Kastrioti did not provide any meaningful response to this query (in that Mr Kastrioti did not identify how any of the alleged errors might reasonably suggest that I might not bring an impartial mind to any issue in the proceedings), and merely repeated (by reading aloud) large sections of text from his written materials alleging error.

16    That raises a practical challenge. A Court cannot be required to trawl through a large body of material alleging errors and seek to discern any particular error that could conceivably be suggested, but was not actually suggested, to reveal a basis for an apprehension that the judge will not decide subsequent issues on their merits.

17    Many of the alleged errors relate to the decision not to order the production to Mr Kastrioti of the three transcripts of the hearings before Judicial Registrar Cody. Although Mr Kastrioti may disagree with my ruling on his application to be provided transcript, and indeed has brought an application for leave to appeal in that regard, he has not identified how that gives rise to any possible perception that I might determine other issues in the proceedings other than on their legal and factual merits.

18    Further, to the extent that it is said that I ruled on matters without a lengthy consideration, or dealt with Mr Kastrioti briefly in relation to matters he wished to raise, or sought to move him along or to prevent him from interrupting me, or indicated that I had already read a submission that Mr Kastrioti was reading out aloud, it is pertinent to observe that case management hearings of their nature deal in a reasonably summary way with procedural questions. The case management hearing on 21 May 2026 went for more than 45 minutes, which is longer than such a hearing would usually last, and involved more detailed consideration of the matters raised by Mr Kastrioti than would ordinarily be afforded to a litigant. None of these matters raise any reasonable apprehension of bias.

19    Mr Kastrioti also appears to complain that my decision to extend the time for the respondents to respond to the notices to admit was biased in their favour and somehow deprived Mr Kastrioti of the forensic benefit of a deemed admission. However, the respondents had moved to set aside the notices to admit. Those applications had not been heard. I declined to entertain them (ruling in Mr Kastrioti’s favour in that regard). To deprive the respondents of an opportunity to set aside the notices to admit and to simultaneously refuse to extend the time for them to respond, thus causing them to be deemed to have admitted many facts, would have been procedurally unfair to the respondents. Mr Kastrioti’s suggestion that this suggests bias on my part is a suggestion without merit.

20    It follows that no proper basis has been identified for the granting of prayer 1 of Mr Kastrioti’s interlocutory application and I refuse the disqualification application with costs.

Associate:

Dated:    31 July 2026