SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126

SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126

Wigney J refused to recuse himself because, in the circumstances, a fair-minded lay observer would not reasonably apprehend that his participation in the joint judgment in Kim meant he held an irrevocable commitment to the construction of s 48 of the Migration Act or could not fairly, objectively and impartially consider the Minister's contention that Kim was plainly wrong, particularly where the issue arose in a different factual and legal context, before a five-member Full Court, and with arguments that may not have been put with the same force in Kim.

Jurisdiction
Australia
Judgment Date
20 February 2017
Procedural Posture
Appeal From Dismissal of a Federal Circuit Court Judicial Review Application; Interlocutory Recusal Application / Minister's Interlocutory Application for Wigney J to Recuse Himself, Determined on the Papers
Outcome
Minister's interlocutory recusal application dismissed.
Legal Topics
['apprehended Bias' 'judicial Disqualification' 'recusal' 'protection Visa Applications' 'migration Act Ss 48 and 48 A']
['practice and Procedure' 'administrative Law' 'migration Law'] ['apprehended Bias' 'judicial Disqualification' 'recusal' 'protection Visa Applications' 'migration Act Ss 48 and 48 A']

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Procedural Posture

Appeal From Dismissal of a Federal Circuit Court Judicial Review Application; Interlocutory Recusal Application / Minister's Interlocutory Application for Wigney J to Recuse Himself, Determined on the Papers

Legal Issues

  1. 1 ['Whether a fair-minded lay observer might reasonably apprehend that Wigney J might not bring an impartial mind to the appeal because he was a member of the Full Court that decided Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523, which the Minister sought to contend was plainly wrong.' 'Whether Betfair Pty Ltd v Racing New South Wales (No 14) [2010] FCA 696 required or supported recusal in the circumstances.' 'Whether the recusal application could be heard and determined on the papers.']

Ratio Decidendi

Wigney J refused to recuse himself because, in the circumstances, a fair-minded lay observer would not reasonably apprehend that his participation in the joint judgment in Kim meant he held an irrevocable commitment to the construction of s 48 of the Migration Act or could not fairly, objectively and impartially consider the Minister's contention that Kim was plainly wrong, particularly where the issue arose in a different factual and legal context, before a five-member Full Court, and with arguments that may not have been put with the same force in Kim.

Court Disposition

Minister's interlocutory recusal application dismissed.

Orders

  • ["The first respondent's interlocutory application filed 15 February 2017 be dismissed."]