Federal Court of Australia

Miglani v Minister for Immigration, Citizenship and Multicultural Affairs (No 3) [2026] FCA 1177

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 13 August 2026 is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

(Revised from transcript)

MARKOVIC J:

1    By interlocutory application filed on 13 August 2026, Sunny Miglani, the applicant, seeks two orders: first, an order for my exclusion from hearing the appeals in proceedings NSD444/2024 and NSD467/2024; and secondly, an order that he be referred for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth).

2    I will treat Mr Miglani’s application for my exclusion as an application that I disqualify myself from hearing the applications that are listed before me today for hearing. They are applications to set aside orders (Set Aside Applications) made in each proceeding on 9 March 2026 pursuant to r 35.33(1)(a)(i) of the Rules (Dismissal Orders). On that date Mr Miglani’s applications for an extension of time and leave to appeal (Leave Applications) from Orders made by the Federal Circuit and Family Court of Australia (Div 2) on 6 February 2024 and 28 March 2024 were listed for hearing. However, Mr Miglani did not appear at that hearing. Accordingly, on the application of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, I made the Dismissal Orders.

3    It is necessary for me to address the question of my disqualification first, as this goes to the question of the Court’s jurisdiction. In support of his application, Mr Miglani relied on an earlier affidavit affirmed on 3 June 2026 which annexes correspondence between, relevantly, Mr Miglani and Court Registry staff and a judicial registrar. In that correspondence, Mr Miglani contends that “[a]llowing the same judge to review their own decision violates the core judicial principle of impartiality” and “creates a legally fatal apprehended bias and [is] procedurally unfair” and “is an abuse of the court process”. Mr Miglani also asks in that correspondence that the question of my “exclusion” be escalated to the Chief Justice. Mr Miglani has sent several emails to the same effect to the Court’s Registry. Mr Miglani also made oral submissions to that effect before me this afternoon.

4    In addition, in oral submissions Mr Miglani suggested that the proper course was for him to appeal from the Dismissal Orders to the High Court of Australia but that was not made possible because the Dismissal Orders referred to him as “applicant” rather than as an “appellant”.

5    I understand Mr Miglani’s contentions and the basis for my disqualification to be an assertion of apprehended bias. As observed by Lee J in Independent Commission Against Corruption v Waterhouse [2026] FCA 424, the principles governing the question of whether there is apprehended bias are settled. His Honour explained at [25]:

… A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (at 344 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ). The High Court recently reaffirmed the orthodox approach in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8, including emphasising the necessity of identifying a logical connexion between the matter relied upon and the feared departure from deciding the case on its merits.

6    Mr Miglani identifies as the basis for seeking my disqualification his concern that the same judge should not be permitted to sit on an appeal from his or her own decision and suggests that if I am permitted to do so, I will not bring an impartial mind to the resolution of the proceeding. However, Mr Miglani’s submissions and thus the basis upon which he seeks my disqualification, misunderstand the nature of the application to set aside the Dismissal Orders. That is not to criticise Mr Miglani, who is self-represented and not familiar with the Court’s rules and practices.

7    The Court’s jurisdiction to hear appeals is conferred by s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). That jurisdiction is conferred in relation to, among other things, appeals from judgments of the Court constituted by a single judge exercising the original jurisdiction of the Court. Section 25 of the FCA Act provides that, subject to the provisions of that section, the appellate jurisdiction of the Court is to be exercised by a Full Court. One of the exceptions to the exercise of the appellate jurisdiction by a Full Court is in relation to appeals from a judge of the Federal Circuit and Family Court of Australia (Div 2), which can be heard by a single judge of this Court.

8    In his applications to set aside the Dismissal Orders, Mr Miglani seeks various orders as “interlocutory relief”, including that the “Appeal is allowed”, that “a writ of certiorari is issued to quash the” Dismissal Orders and that a writ of mandamus issue to “direct the tribunal, immigration assessment authority or Minister” to determine Mr Miglani’s application according to law. However, more relevantly, Mr Miglani seeks an order that the Dismissal Orders are set aside. While Mr Miglani does not identify the rule on which he relies, I take the application to have been made pursuant to r 35.33(2) of the Rules. That rule relevantly provides that where a hearing proceeds in a party’s absence and at the conclusion of the hearing, an order is made, the absent party may apply to the Court for an order setting aside that order. That is the only relief for which Mr Miglani may presently apply in this Court given that the Leave Applications were dismissed.

9    An application under r 35.33(2) is made in the same proceeding as the orders which are sought to be set aside or varied. It is not an appeal but is rather an interlocutory application. Such an application is ordinarily heard by the same judge who made the orders which are sought to be varied or set aside. That judge has familiarity with the proceeding and with what occurred at the time the orders the subject of the application were made. The matters to be considered on such applications are whether the absent party has provided an acceptable explanation for their absence at the hearing and the strength of the applicant’s case: Liu v Minister for Immigration and Citizenship (No 2) [2026] FCA 876 at [8] (Perry J).

10    Given those matters, there can be no apprehension that I would not bring an impartial mind to the resolution of the Set Aside Applications. They require me to consider the factors I have identified and are not an appeal in the true sense but a consideration of whether there has been a proper explanation and a consideration of the merits of the case. In this case, I have not, to date, undertaken any such consideration. In my view, Mr Miglani has not identified any matter that would impact the discharge of my duty to consider the Set Aside Applications according to law or, put another way, has not identified why a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to their resolution.

11    I decline the application that I disqualify myself from hearing the Set Aside Applications.

12    I will also address the second order sought by Mr Miglani: that the Court be required to refer him for pro bono legal assistance under r 4.12 of the Rules. That rule provides that the Court may refer a party to a lawyer for legal assistance by issuing a referral certificate in accordance with Form 9. Rule 4.12(2) sets out the matters which the Court may take into account when making a referral. Rule 4.13 of the Rules provides that a party is not entitled to apply to the Court for a referral under r 4.12. As the Rules clearly state, there is no entitlement for a party to apply for a referral for legal assistance under r 4.12 of the Rules. In my view, that is a complete answer to the relief sought by Mr Miglani in paragraph 2 of his interlocutory application. It follows that the interlocutory application filed by Mr Miglani on 13 August 2026 in each proceeding is dismissed.

13    The Minister seeks his costs of the interlocutory application filed on 13 August 2026. Mr Miglani submits that he was encouraged to file that application by the Minister and by the Court.

14    There is no evidence before me to that effect. I will make an order that Mr Miglani pay the Minister’s costs of the interlocutory application.

Associate:

Dated:    19 August 2026