CPF15 v Minister for Immigration and Border Protection [2018] FCA 1764

CPF15 v Minister for Immigration and Border Protection [2018] FCA 1764

The apprehended bias grounds were not made out because the matters relied on, including prior appellable error, the interpreter issue, the listing of the matter, and the judge's reasons on recusal, did not firmly establish that a fair-minded lay observer might reasonably apprehend prejudgment or lack of impartiality. However, the refusal of the adjournment miscarried because the primary judge gave insufficient regard to the appellants' particular circumstances: they had spent their limited savings to correct earlier procedural errors, had not received the costs ordered in their favour until at most very shortly before the hearing and not on accepted terms, sought a finite adjournment to...

Jurisdiction
Australia
Judgment Date
14 November 2018
Procedural Posture
Migration Appeal From Judgments of the Federal Circuit Court of Australia Concerning Judicial Review of an Administrative Appeals Tribunal Protection Visa Decision and Related Interlocutory Orders / Appeal And, to the Extent Necessary, Leave to Appeal From Interlocutory Orders; Appeal Allowed in Part and Remitted
Outcome
Leave granted to the extent necessary; appeal allowed in part; Federal Circuit Court orders set aside; application remitted differently constituted; costs ordered against the first respondent.
Legal Topics
['protection Visas' 'judicial Review' 'reasonable Apprehension of Bias' 'recusal' 'adjournment' 'procedural Fairness' 'remittal']
['migration' 'administrative Law' 'practice and Procedure'] ['protection Visas' 'judicial Review' 'reasonable Apprehension of Bias' 'recusal' 'adjournment' 'procedural Fairness' 'remittal']

Case Brief

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Procedural Posture

Migration Appeal From Judgments of the Federal Circuit Court of Australia Concerning Judicial Review of an Administrative Appeals Tribunal Protection Visa Decision and Related Interlocutory Orders / Appeal And, to the Extent Necessary, Leave to Appeal From Interlocutory Orders; Appeal Allowed in Part and Remitted

Legal Issues

  1. 1 ['Whether the Federal Circuit Court judge erred in refusing to recuse himself on the ground of reasonable apprehension of bias.' 'Whether the Federal Circuit Court judge erred in refusing to vacate the hearing date or grant an adjournment.' 'Whether the appellants were denied a reasonable opportunity to present their case.' 'Whether, after finding error in the refusal of an adjournment, the Court should determine the substantive judicial review grounds.']

Ratio Decidendi

The apprehended bias grounds were not made out because the matters relied on, including prior appellable error, the interpreter issue, the listing of the matter, and the judge's reasons on recusal, did not firmly establish that a fair-minded lay observer might reasonably apprehend prejudgment or lack of impartiality. However, the refusal of the adjournment miscarried because the primary judge gave insufficient regard to the appellants' particular circumstances: they had spent their limited savings to correct earlier procedural errors, had not received the costs ordered in their favour until at most very shortly before the hearing and not on accepted terms, sought a finite adjournment to...

Court Disposition

Leave granted to the extent necessary; appeal allowed in part; Federal Circuit Court orders set aside; application remitted differently constituted; costs ordered against the first respondent.

Orders

  • ['To the extent necessary, leave is granted to appeal from orders 2, 3 and 4 made in the Federal Circuit Court of Australia on 9 May 2018.' 'The appeal be allowed in part.' 'Order 4 of the Federal Circuit Court of Australia made on 9 May 2018 and orders 1 and 2 of the Federal Circuit Court of Australia made on 17...