QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

QYFM APPELLANT

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP,

MIGRANT SERVICES AND MULTICULTURAL

AFFAIRS & ANOR RESPONDENTS

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2023] HCA 15

Date of Hearing: 13 December 2022

Date of Judgment: 17 May 2023

M53/2022

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 15 September 2021.

3. Remit the matter to the Federal Court of Australia to be heard and determined by a differently constituted Full Court.

4. The first respondent pay the appellant's costs of the appeal and of the hearing to date of the appeal to the Full Court of the Federal Court of Australia.

On appeal from the Federal Court of Australia

Representation

E M Nekvapil SC with N Boyd-Caine and C J Fitzgerald for the appellant (instructed by Zarifi Lawyers)

S P Donaghue KC, Solicitor-General of the Commonwealth, with A F Solomon-Bridge and A N Regan for the first respondent (instructed by Clayton Utz)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Courts and judges – Bias – Reasonable apprehension of bias – Where appellant appealed to Full Court of Federal Court of Australia from decision dismissing application for judicial review of non-revocation of decision to cancel his visa on character grounds – Where appellant sought recusal of judge sitting as member of Full Court constituted to hear appeal – Where reasonable apprehension of bias on the part of challenged judge said to arise from judge's appearance, in former capacity as Commonwealth Director of Public Prosecutions, as counsel for Crown in opposition to appellant's appeal against conviction – Where appellant's conviction causally related to cancellation of visa and non-revocation decision subject to challenge in Full Court – Whether fair-minded lay observer might reasonably apprehend that judge might not be impartial – Whether reasonable apprehension of bias on the part of challenged judge vitiated Full Court's jurisdiction.