FKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicants, FKP17, sought leave to appeal a decision of a Federal Circuit and Family Court of Australia (FCCA) Judge who declined to recuse himself from hearing an application under section 477(2) of the Migration Act 1958 (Cth) due to an apprehension of bias. The applicants argued that the Judge's conduct during the hearing demonstrated a reasonable apprehension of bias. The legal issues before the court were whether the Judge's conduct could be seen as biased and if the Judge properly assessed the cumulative effect of the alleged biased conduct.

The court found that the Judge had properly considered the cumulative effect of the applicants' claims of biased conduct. The Judge had set out the principles for determining a claim of apprehended bias and had assessed the applicants' claims both individually and cumulatively. The court found that the Judge's conduct, including any impatience or use of strong language, did not lead a fair-minded lay observer to conclude that the Judge might decide the application otherwise than on its legal and factual merits. The applicants' reliance on a subjective affidavit from their legal representative was deemed irrelevant as it only reflected the representative's personal beliefs and perceptions.

The court dismissed the application for leave to appeal, finding that the Judge had appropriately assessed the claims of apprehended bias and concluded that no reasonable apprehension of bias existed. The applicants were ordered to pay the respondent's costs as agreed or taxed.