Erasga v Minister for Immigration and Border Protection

The applicant, Mr Erasga, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning the refusal of his partner visa application. The AAT had initially found that Mr Erasga and his sponsor had not established a genuine de facto relationship, leading to the visa refusal. Subsequently, the Tribunal purported to re-open its review, asserting a jurisdictional error had occurred. This re-opening involved the Tribunal making enquiries of its own motion and presenting new, adverse material to the applicant.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the AAT's actions in re-opening the review and its subsequent conduct established a reasonable apprehension of bias on the part of the Tribunal. This required the court to consider the procedural fairness afforded to Mr Erasga and whether the Tribunal acted within its powers when it decided to re-examine its own decision.

Judge Driver found that the Tribunal's actions in re-opening the review and its subsequent conduct did not give rise to a reasonable apprehension of bias. The court reasoned that the Tribunal had the power to re-open its decision if it identified a jurisdictional error. The enquiries made and the new material presented, while adverse, were part of the Tribunal's process in attempting to rectify what it perceived as an error. The court concluded that the Tribunal's conduct, viewed objectively, did not demonstrate a pre-judgment or a lack of impartiality.

The application for judicial review was dismissed.