FKP17 & Ors v Minister for Immigration & Anor

In the Federal Court of Australia, Judge Manousaridis presided over proceedings involving FKP17 and other applicants, and the Minister for Immigration and another respondent. The central dispute concerned an application for recusal, where the applicants alleged that the manner in which the judge had conducted a prior hearing gave rise to a reasonable apprehension of bias.

The primary legal issue before the court was whether the judge's conduct during the hearing, specifically in relation to the admissibility of an affidavit and the assertion of legal professional privilege by the applicants, demonstrated bias. This involved determining whether the Minister had laid a sufficient foundation to exercise the discretion under section 135 of the Evidence Act 1995 (Cth) to exclude the affidavit, and whether the applicants' stance on privilege, coupled with the Minister's actions, created a perception of unfairness.

Judge Manousaridis reasoned that the Minister's objection to the affidavit, based on the applicants' alleged waiver of privilege while simultaneously maintaining it, was not adequately supported. The judge noted that the Minister had not sought to obtain the relevant documents through formal legal processes like subpoena or notice to produce. While the Minister's counsel referred to an email and a telephone request made to the applicants' legal representative, the judge questioned whether these actions were sufficient to establish a basis for excluding the evidence under section 135. The exchange indicated that the Minister was seeking to rely on the applicants' refusal to waive privilege as a ground for exclusion, a proposition the judge appeared to scrutinise closely.

The application for recusal was ultimately refused.