BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683

FEDERAL COURT OF AUSTRALIA

BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 Appeal from: BDS17 v Minister for Immigration and Border Protection [2017] FCCA 2757

File number: NSD 2111 of 2017

Judge: FLICK J

Date of judgment: 8 November 2018

Catchwords: EVIDENCE – coincidence evidence – admissibility of coincidence evidence – where evidence adduced to establish actual bias – where evidence adduced to establish state of mind of primary Judge – evidence of other cases decided by the primary Judge – statistical evidence – whether evidence has significant probative value – evidence inadmissible ADMINISTRATIVE LAW – actual bias – test to establish actual bias – consideration of need for caution before raising allegation of actual bias – whether primary Judge actually biased ADMINISTRATIVE LAW – reasons for decision –requirement to give reasons – consideration of what constitutes adequate reasons – whether the primary Judge failed to give adequate reasons – whether there was a real engagement with the arguments and grounds being advanced ADMINISTRATIVE LAW – apprehended bias – whether the Tribunal exhibited apprehended bias against the Appellant – whether Tribunal Member hostile to the Appellant – whether the allegation of apprehension of bias appropriately made HIGH COURT AND FEDERAL COURT – application for the Court to be reconstituted – where application made after the conclusion of the hearing – where Counsel expressly declined to make application during the hearing – application rejected PRACTICE AND PROCEDURE – legal practitioners –where barrister affirmed affidavit in proceeding in which he appeared – where affidavits annexed documents sought to be relied on – where prospect that barrister appearing could be called upon to give evidence – a course to be shunned