FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 729

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 729

File number(s): SYG 3158 of 2018

Judgment of: JUDGE GIVEN

Date of judgment: 18 August 2023

Catchwords: MIGRATION – Recusal application – waiver – whether previously vacated litigation guardian order should be reinstated – whether applicants should be entitled to reopen their case – request by applicants that Judge wear wig in order to appear impartial

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191

Federal Court Act 1976 (Cth) ss 37M, 37N

Migration Act 1958 (Cth) s 65

Cases cited:
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Attorney-General (NSW) v Quin (1990) 170 CLR 1

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283

Choi v Secretary, Dept of Justice and Communities (2022) 405 ALR 714

CNY17 v Minister for Immigration and Border Protection (2018) 264 FCR 87

CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

GoddardElliott (A Firm) v Fritsch [2012] VSC 87

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

Isbester v Knox City Council (2015) CLR 135

Johnson v Johnson (No 3) (2000) 201 CLR 488

Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746

Matson v Attorney-General (Cth) [2021] FCA 161

Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

QYFM v Minister for Immigration (2023) 409 ALR 65

R v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546

R v George (1987) 9 NSWLR 527

R v Leckie; Ex parte Felman (1977) 52 ALJR 155

Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674

Re JRL; Ex parte CJL (1986) 161 CLR 342

Young v Hughes Trueman Pty Ltd (No 5) [2017] FCA 690

Division: Division 2 General Federal Law

Number of paragraphs: 143

Date of hearing: 15 August 2023

Solicitor for the Applicants: In person

Solicitor for the Respondents: Mr B Kaplan

Solicitor for the Respondents: Minter Ellison
ORDERS

SYG 3158 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FXF18

First Applicant

FXG18

Second Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE GIVEN

DATE OF ORDER:

18 August 2023

THE COURT ORDERS THAT:
1.Each of the applications in a proceeding filed on 16 May 2023 (interlocutory applications) is dismissed.
2.The applicants must pay the first respondent’s costs and disbursements, of and incidental to, the interlocutory applications, as agreed or taxed.
3.Final judgment remains reserved from 19 April 2023, to a time and date to be notified to the parties.
4.No further documents are to be accepted for filing from the applicants in these proceedings by the Registry, except by order of the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT

BACKGROUND

[2]

Final hearing

[8]

Events following the final hearing

[18]

Directions hearing

[26]

The interlocutory applications

[28]

Evidence

[39]

PRELIMINARY ISSUES

[47]

First preliminary issue – the attire of the Court

[47]

Second preliminary issue – clarification of the position of the second applicant

[56]

RECUSAL

[59]

Principles

[59]

First applicant’s submissions

[67]

Minister’s submissions

[69]

Consideration

[74]

Procedural fairness basis

[77]

Disclosure basis

[90]

Conclusion

[101]

LITIGATION GUARDIAN ORDER

[106]

REOPENING OF THE CASE AND/OR AMENDMENT

[115]

Principles

[116]

Submissions

[119]

Consideration

[123]

Conclusion

[140]

DISPOSITION

[142]

Costs

[143]

JUDGE GIVEN:

I have before me two applications in a proceeding each of which was filed for the applicants on 16 May 2023 (collectively, the interlocutory applications).
BACKGROUND
The interlocutory applications were filed in the following context.
On 15 October 2018, the Administrative Appeals Tribunal (Tribunal) made a decision affirming a decision of a delegate of the Minister (delegate) to refuse the grant of Subclass 866 Protection visas (visas) to each of the first and second applicants under s 65(1)(b) of the Migration Act 1958 (Cth) (Act).
The applicants are Russian nationals who arrived in Australia on 5 April 2014, each holding a Subclass 600 Visitor visa. The first applicant is the mother of the second applicant. The first applicant claimed to fear harm in Russia as a bisexual. Each of the applicants also claims to be Jewish yet also to have commenced preparation for conversion to Judaism after their arrival in Australia (CB 885 at [2]). The applicants claim to fear harm in Russia on the basis that they are Jewish.
The applicants sought review of the Tribunal’s decision by an application to show cause filed with this Court on 13 November 2018. At the time the proceedings were commenced, the applicants were unrepresented and the second applicant was still a minor. The matter was initially docketed to another Judge of this Court. On 6 December 2018, a Registrar made orders by consent. Those orders, inter alia, resulted in the first applicant being appointed as the second applicant’s litigation guardian (litigation guardian order). The applicants were also granted leave to file and serve any amended application and evidence on or by 28 March 2019.
On 22 July 2019, the applicants filed an amended application. It is apparent from the footer of that document that it was prepared by Counsel who acted for the applicants on a direct access and (as later revealed) pro bono basis.
The proceedings were later placed in the central migration docket where they remained until 8 December 2022 when they were docketed to me. On that date, I made orders listing the matter for hearing before me on 19 April 2023, with orders for the preparation for hearing, including the filing of any further amended application. The parties filed their respective submissions as ordered.
Final hearing
At the hearing before me on 19 April 2023 (final hearing), each of the parties was represented by their respective Counsel who, in the Minister’s case was also accompanied by his instructing solicitor. The first applicant was not present in Court when the hearing commenced.
At the outset of the hearing, three items of housekeeping arose.
First, having read the documents on file in the preparation for the hearing, I made a disclosure to the parties that many years ago I had undertaken a conversion to Judaism of both myself and my daughter (the disclosure). Had any recusal application been made for any party, including the Minister, I would have heard the parties on that issue.
The second question, which arose because the second applicant had reached her majority some years earlier, was whether the litigation guardian order ought be vacated. Counsel for the applicants responded as follows in the presence of the second applicant:
I don’t have instructions to agree to that, however, given that she has attained the age of majority I see no reason why not.[1]
[1] Transcript 19 April 2023 at T2.36.37
The Court observed that because the second applicant was of majority, those instructions were likely to be able to be taken from her directly. However, given the absence of the first applicant from the Court room, and upon information that she was only 10 minutes away, I adjourned to enable the first applicant to arrive. This was so both applicants could confer with, and instruct, their Counsel in relation to each of the matters raised. Counsel for the Minister indicated that the Minister did not object to me continuing to hear the matter and had no recusal application to make. Nor did the Minister oppose the adjournment to enable the applicants to provide the additional instructions.
When the final hearing resumed, the following exchange took place between Counsel for the applicants and the Court:
Counsel: Yes. Your Honour, I’ve had the benefit of seeking those instructions, your Honour. There’s no difficulty with your Honour hearing the matter.
Court: Thank you.
Counsel: Additionally, the applicants consent to order 1 of the orders made on 6 December 2018, being vacated. That is the litigation guardian order.[2]
[2] Transcript 19 April 2023 at T3.30 to T3.36
The Minister did not oppose the vacation of the litigation guardian order and, accordingly, I made an order to that effect.
The third item of housekeeping was that Counsel for the applicants sought leave to rely on a further amended application which had been circulated on the morning of the hearing. The amendment in essence, sought to meet issues raised by the first respondent’s written submissions (see [16] below). Leave to amend was opposed by Counsel for the Minister solely on the basis that the additional proposed grounds lacked merit. The parties were in agreement that the question of leave could be deferred for determination as part of the final judgment in the matter, once that merit had been considered.
The proposed further amendment arose in the following context. By the amended application filed in 2019, the sole ground of review alleged an error in respect of how the Tribunal dealt with a claim of the second applicant only. In opposing the proposed further amended application the Minister submitted as a consequence of that ground, that even if jurisdictional error were to be established, writs should issue in respect of the second applicant only. As is customary, the Minister’s written submissions were filed only shortly before the final hearing, and because the proposed further amended application was only circulated in response thereto on the day of the final hearing, time was necessarily taken at the hearing by all parties in ventilating the additional issue which had not yet been canvassed in writing. As part of that discourse, there was discussion about there being utility in providing the Court with parts of the relevant visa application for Form 866 (namely Form 866D), as at the point time at which the applicants had made the visa application. This becomes relevant to certain complaints made by the applicants later.
At the conclusion of the final hearing I made the following orders:
1.   Order 1 made on 6 December 2018 is vacated.
2.   The first respondent must file and serve any additional evidence and written submissions (not exceeding 2 pages) on or by 3 May 2023.
3.   The applicant must file and serve any further supplementary written submission (not exceeding 2 pages) on or by 17 May 2023.
4.   Judgment is reserved upon the conclusion of orders 2 and 3, until a time to be notified to the parties.
(April Orders)
Events following the final hearing
At or about 4:20pm on 19 April 2023, being only shortly after the conclusion of the final hearing that same day, Counsel for the applicants wrote to the Court with the Minister’s representatives copied, to send legislation as agreed with both Counsel prior to the conclusion of the hearing.[3]
[3] The Court did not make a formal order given the limited scope of the legislation to be provided, that it was not in dispute between the parties and that all parties were represented.
At or about 8:40am on 20 April 2023, the Court received a further email from Counsel for the applicants (to which the Minister’s representatives were again copied). The email relevantly stated the following:
Since the conclusion of the court proceedings yesterday, I have received further instructions which have now put me in a position where I must regrettably seek leave to withdraw as counsel for the applicants. I am not at liberty to disclose what those instructions are, however each of the applicants and the Minister's Counsel has been notified of my intention to seek leave to withdraw prior to this communication being sent to the court.
At my direction, my Associate responded as follows (emphasis in original):
I refer to Ms Yu’s email below, which has been brought to the attention of Judge Given.
As Ms Yu has been acting on a direct access basis, she does not require the leave of the Court to withdraw as the applicants’ Counsel. However, the Court is grateful for the courtesy of being informed of this development by Ms Yu.
Unless or until any Notice of Address for Service is filed for one or both of the applicants’ correspondence from the Court (and any service) will be effected by post to the North Sydney address which is included on the originating application. If the applicants wish to receive correspondence by email, they will need to nominate an email address (or one each). A Notice of Address for Service form is attached for ease of use.
The departure of Ms Yu from the proceedings does not alter the timetable made at the conclusion of yesterday’s hearing. A sealed copy of the orders made yesterday is attached again.
What followed after the departure of the applicants’ Counsel from the proceedings was a large number of emails, many of which sent ex parte, from the first applicant to the Court’s Registry and to my Chambers. A Notice of Address for Service was filed for the applicants on 1 May 2023 (May NOAS). A handwritten notation at the top of the May NOAS stated:
We are representing ourselves.
A particular Gmail address was provided as an email address for service by the May NOAS.
From the emails referred to at [21] above, it appeared there had been a number of misunderstandings by the applicants as to the nature of a judicial review hearing. The correspondence revealed that the applicants thought the Minister had unfairly been represented by two separate law firms (there being two lawyers at the Bar table for the first respondent because Counsel was instructed by a solicitor (see [8] above)). They were disappointed that they had not been asked to give evidence. They were frustrated that the submissions made by each of the respective Counsel focused on legal technicalities (and in particular discussion about Form 866D). The applicants were apparently aggrieved that the Court had not provided an interpreter to them. Many of the above concerns appeared to have arisen from a misapprehension as to the form, nature and practice and procedure of judicial review proceedings. The correspondence indicated that the applicants had an expectation that, like the Tribunal, the Court would take evidence from them and assess, for itself, the truth of their protection claims.
Additionally, the applicants seemed aggrieved by having been denied assistance which would also not have been provided by the Tribunal. For example, a complaint was repeatedly made about the absence of a Court-provided child psychologist for the second applicant in these proceedings. At the time of the interlocutory hearing the second applicant was 22 years old. In this regard, and despite having consented to it, the first applicant now also took issue with the vacation of the litigation guardian order.
Ultimately, the unceasing correspondence was such that I listed the proceedings for a directions hearing so that the above-mentioned concerns could be discussed with, and clarified for, the applicants. This was also because the Court had not seen any correspondence to indicate that the Minister’s solicitors had sought to assuage the applicants’ concerns.[4]
[4] However, at the directions hearing the solicitor for the Minister indicated that some responses had been sent to clarify certain issues
Directions hearing
On 9 May 2023, the directions hearing took place. Each of the applicants appeared in person and the Minister was represented by the same solicitor who had attended the final hearing. The issues set out at [23] to [24] above were canvassed, with the assistance of an interpreter in the Russian language (albeit the first applicant chose primarily to engage with the Court in English, and the second applicant is fluent in English and did not require the interpreter at all). The applicants did not seek leave to reopen their case or amend. The applicants also did not raise any question of recusal.
At the directions hearing, the solicitor for the Minister said that the Minister was no longer pressing the position that if error were to be established, any remittal should only pertain to the second applicant. This had apparently already been conveyed to the applicants in correspondence. This retraction seemed to be in an effort to assuage concerns and to also quell the volume of correspondence from the applicants. The Court sought to explain this change in position to the applicants and that, by reason of it, the grant of leave which had been made at the conclusion of the final hearing for submissions directly on that (now abandoned) issue, lacked utility. However, the applicants (predominantly the first applicant) were adamant that they wanted to utilise the grant of leave. Ultimately, the Court indicated that any submission filed in accordance with the April Orders would be considered if received in time, following which, judgment would be reserved.
The interlocutory applications
On 16 May 2023, the applicants filed the interlocutory applications. Having been filed (and therefore timestamped) almost simultaneously, the interlocutory applications can be relevantly distinguished as follows:
(a)the first application in a proceeding is dated 13 May 2023 (first application). The orders sought by it are as follows (errors in original):
Please refer to Affidavit
Change Judge/division
Allow to lodge additional grounds
Allow us additional time to lodge
Revert the order 1 made by Judge Given on 19 April 2023/make it invalid as [2^nd applicant] was under age during the whole process and it causes additional trauma
A declaration that the recommendation of the Indep Protection Assessment Reviewer was not made in accordance with law, by reason of the grounds of this application.
An injunction restraining Minister make further decisions
Wave condition of “no further stay” as the situation in Russia deteriorate.
(b)the second application in a proceeding is dated 15 May 2023 (second application). By this document, the applicants appear to seek orders pertaining to some anterior visa process. This includes allowing the applicants the opportunity to make fresh protection visa claims pertaining to the current situation in Russia, and seeming to object to the Tribunal having held a joint hearing for both applicants. While the second application is styled as an application in a proceeding, in essence it seems to be a further submission in support of the first application.
I listed the interlocutory hearings before me on 7 June 2023 (interlocutory hearing).
On 6 June 2023, being the day before the interlocutory hearing, the first applicant who (from the location included in certain Affidavits and correspondence appeared not to be in New South Wales, but in Queensland instead) asserted that she was unwell. It was for this reason that she sought an adjournment (while not addressing the fact she was interstate). The Minister consented to that adjournment, on the condition that it be brief and that any relisted fixture be suitable to the Minister’s Counsel. The Court acceded to the request, albeit because dates mutually available between the Court and the Minister’s Counsel were limited, relisted the interlocutory hearing to 24 July 2023, which was later changed to 15 August 2023 due to a scheduling difficulty for the Court.

On 15 August 2023, the applicants appeared before me in person with the assistance of an interpreter in the Russian language. The Minister was again represented by his Counsel, who was instructed by a solicitor. The second applicant requested that she not use the services of the interpreter because she is fluent in English. The first applicant used the services of the interpreter intermittently, but predominantly addressed the Court (of her own volition) in English. There did not appear to be any difficulty in comprehension between the first applicant and the interpreter. At an early stage in the hearing, the interpreter asked the Court to speak up. Doing so appeared to resolve a momentary issue she was having. Despite a suggestion made by the first applicant following a mid-morning adjournment (see [71] below) that the interpreter had said she “cannot hear very well, the interpreter confirmed that she was not having any such difficulty and that changed she would raise any concern by herself.
At about 10:00am on 17 August 2023, the first applicant emailed the Court expressing a variety of new grievances, including (errors in original):
In regards of the court hearing on 15th of August:
1. Translator complained that she could not hear and accordingly translate. She also stated that the speed was too fast and paragraphs are too big.
I brought it to the attention of the judge but actually after that there was almost no translation especially of Mr Kaplan
Moreover this is the same translator from jewish community, I knew the translator from private settings which could violate the code of confidentiality and I believe the translation was not correct. Last part of the hearing was not translated at all.
There was two men who we don't know and who the judge did not present to us who were at the hearing and this violates confidentiality…
The first applicant copied the email referred to at [32] above to, inter alia, Mr Patrick Gorman MP, Mr Bill Shorten MP, Senator Katy Gallagher, and the Federal Marshal, but notably not the second applicant. The Court forwarded the email to the second applicant at the email address provided by her at the conclusion of the interlocutory hearing (see [57] below).
Aside from the complaint already set out at [31] above, at no time during the hearing did the first applicant make any of the allegations now made by the email of 17 August 2023. In particular, at no time did either of the applicants say that they knew the interpreter.[5] The interpreter also made no such claim. There is no evidence before the Court that the applicants and the interpreter were known to each other. Even if they were known to one another this would not, in and of itself, necessarily pose an unacceptable conflict or otherwise affect the interpretation services provided. Had such an issue genuinely arisen the Court would have assessed the situation based on the facts and circumstances of the case. There is no explanation as to why this allegation was only made some 48 hours after the interlocutory hearing. Had it been raised at the hearing, the interpreter would also have had an opportunity to address the Court as to the veracity of the claim, which may also explain why it was not so raised by the applicants at hearing.
[5] Nor has the second applicant claimed to know the interpreter at all
The interpreter interpreted at all times in the hearing as needed and/or requested by the first applicant, whose preference was demonstrably to proceed almost entirely in English.
The bare assertions made by the first applicant in the 17 August 2023 email do not, without more, alter the Court’s perception at the conclusion of the interlocutory hearing that the manner in which the interpreting services were provided was anything other than professional and independent, nor that it adversely affected the ability of the first applicant to participate in the interlocutory hearing.
In terms of the persons present in the gallery seating of the Court room, one was a member of the Court staff. The other appeared, to the Court’s observation, to be in attendance with the Minister’s solicitor. A third gentlemen present was apparently a friend of the second applicant.
The proceedings of the Court, including in Migration proceedings involving protection visa applicants, are conducted in open Court unless otherwise ordered in accordance with the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act). It is for that reason that applicants in protection visa matters are not referred to by name in open Court, in keeping with s 91X of the Act. Had the applicants raised any concern about persons being present in the Court room, the foregoing explanation would have been given. The applicants did not do so, nor seek any explanation as to the identity of those present. There was no application to close the Court made by either applicant.
Evidence
The evidence received at the interlocutory hearing (exclusively advanced by/for the applicants) is as follows:
(a)Affidavit of the first applicant made on 13 May 2023;
(b)Affidavit of the first applicant made on 15 May 2023 (15 May Affidavit);
(c)Affidavit of the first applicant made on 17 May 2023;
(d)Affidavit of the first applicant made on 25 May 2023;
(e)Affidavit of the first applicant made on 31 May 2023;
(f)Affidavit of the first applicant made on 5 June 2023;
(g)Affidavit of the first applicant made on 28 June 2023; and
(h)Affidavit of the first applicant made on 12 August 2023;
While styled and witnessed as Affidavits, the content of them is best described as submissions. Predominantly hand written, the Affidavits comprise mostly transcribed legal texts, unsupported statements and allegations. There are also a number of articles annexed pertaining to theories of psychology, the relevance of which to the present application before the Court is uncertain, but appears to be in support of a general assertion that the Court proceedings are stressful.
To the extent that the Affidavits contained submissions, they were treated as such. Any annexed documents were admitted subject to relevance. On these bases, together with the understanding that the Affidavits referred to at [39] above were admitted in relation to the interlocutory applications only, the Minister did not object to them being received. In addition to the aforementioned Affidavits the first applicant wrote frequently by email to the Court and Registry, see in particular [47] to [55] below.
In terms of the relief sought, some of the prayers for relief in the first application (namely the last 3 at [28(a)] above) do not properly arise in this matter, and can be dealt with first.
There was no independent Protection Assessment Review in this matter. As such that prayer for relief is misguided. To the extent that the applicants seek a general injunction against the Minister, this is also inapposite absent proper evidence and particulars. The final prayer for relief also does not engage the jurisdiction of this Court in judicial review. To the extent that the situation in Russia may have altered since the applicants first applied for a protection visa in Australia, that is not a factor which the Court can consider in any judicial review application of the Tribunal’s decision which was made at a specific point in time on the basis of the facts and circumstances which prevailed. It is also for this reason, that the relief sought by the second application, if it can even be construed as such, does not fall for consideration by the Court.
The remaining prayers for relief will be dealt with in the following order:
(a)recusal application;
(b)application for vacation of the litigation guardian order; and
(c)application for leave to amend which must, against the April Orders reserving judgment, be taken to be an application to reopen the proceedings.
It is necessary to determine the recusal application first because if the Court were to accede to it, the other questions for determination may properly fall to another Judge to consider. At the conclusion of the interlocutory hearing, I reserved judgment and listed its delivery for 18 August 2023 so as to not delay these proceedings any longer.
Prior to considering the substantive interlocutory questions however, two preliminary issues warrant attention.
PRELIMINARY ISSUES
First preliminary issue – the attire of the Court
By an email sent to the Court on the afternoon of 2 August 2023, the first applicant wrote the following:
Dear Madam/Associates,
please attached to our case the appropriate documents to lodge to our case
I would also like to respect our cultural background and would expect the judge to wear a wig during the court hearing as a matter of respect to the law (both Australian and Jewish )
Attached to the aforementioned email were screenshots of internet searches about the purpose of wearing wigs in courts of law and a large photograph of a long-bottomed ceremonial wig, presumably to alleviate any confusion as to what the applicant/s wished the Court to wear. The internet extract, answering a question “Why do Australian barristers wear wigs?” stated inter alia:[6]
The wig is a symbol of justice. In a way, it represents how the barristers and judges distance themselves from bias.
[6] Transcript 15 August 2023 T4.6
On the evening of the same date, the first applicant wrote again to the Court with an offer follows:
P.S. Therefore the English wig maker indicated that they are prepared to provide a 10% discount if the wigs made in Asia or Africa are overpriced or the quality is not there: >
At the commencement of the interlocutory hearing, the first applicant complained that the Court was not attired in the manner she had requested, saying she expected:
...that the judge would have a wig and get dressed as a judge…as respect to our case.
The Court explained to the applicants that, despite the emails on this issue, it is not the custom of Judges (and Justices) of the Federal Circuit and Family Court of Australia (nor for that matter, Justices of the Federal Court of Australia nor the High Court of Australia) to wear wigs. It was further explained that because the hearing was interlocutory in nature, that like the directions hearing (but unlike the final hearing), the Court was in a suit and not robed. The same applied to Counsel for the Minister. The first applicant, clearly not satisfied with those explanations, expressed the view that her request had been declined.
In Choi v Secretary, Dept of Justice and Communities (2022) 405 ALR 714, the New South Wales Court of Appeal (Ward P, Meagher and Leeming JJA) was asked to determine, inter alia, whether the applicant had been denied procedural fairness by the primary Judge having worn a brown suit (without a tie) and, more specifically by the primary Judge having failed to wear a robe and wig. The Court relevantly observed the following at [134] and [212] to [213]:
As to the suggestion that there was a denial of procedural fairness by reference to the fact that the primary judge was not robed or wearing a wig (or the contention that the primary judge was wearing a brown jacket), even apart from the fact that the Court Attire Policy governs the manner in which barristers are to appear before the Court, it cannot seriously be suggested that the wearing of robes or wigs is an requirement of natural justice or that a failure to do so is contrary to the rule of law. There are indeed many Courts in this country in which wigs are not worn in court hearings (including in recent years the High Court).
…
The nature of executive power or administrative functions on the other hand is perhaps less amenable to definition than “judicial power”, except, perhaps, by framing it negatively as that power, or those functions, which are neither judicial nor legislative in nature. Thus, the issuing of a search warrant, for example, has never been conceived of as an exercise of judicial power but, rather, as an administrative function (see, for example, R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411; [1927] HCA 15 at 442 , 450 ).
What is clear, however, is that one looks to the nature and character of the function that is exercised in order to characterise it as either judicial or administrative: it is undoubtedly a matter of substance rather than form (or, as here suggested by Ms Choi, attire). Thus, whether or not the primary judge was wearing a wig says nothing about whether he was exercising judicial power. (Indeed, as may become apparent if Ms Choi pursues her foreshadowed application for special leave to the High Court, the judges of our ultimate appellate court do not wear wigs; but it would surely not be suggested that in hearing appeals and determining litigious controversies in the High Court without wearing wigs their Honours were exercising administrative rather than judicial functions.) Similarly, what colour suit the primary judge may have worn (Ms Choi expressing the opinion that judges wear black) or whether his Honour was wearing a tie, says nothing about the functions there being exercised.
The syllogistic reasoning of the applicants in relation to the attire of the Court,[7] namely that because a wig can represent judicial impartiality, its absence must signify partiality, is not borne out. That is a fortiori in a jurisdiction in which the custom is to not wig in any context.
[7] Which appears to arise from the internet searches (see [48] above)
It is interesting that the only case which the Court could locate dealing which this specific complaint is one so recent, and that it also involved the subjective expectations of an unrepresented litigant: see Choi (supra). It warrants observation that in an increasingly consumer driven society, access to justice and participation in the legal system are not a customer satisfaction-based endeavour. Litigants have the right to an impartial and respectful experience in Court in accordance with the principles of natural justice, statutes governing the relevant jurisdiction and its practice and procedure, and to a proper application of the law. That right does not extend to the Court being required to meet a party’s subjective expectations (garnered potentially from depictions of courts in forms of media and entertainment or the internet) in terms of attire, or in any other superficial regard. As established in Choi, the Court not acceding to whimsical preferences, which go to form over substance, does not inform the question of whether procedural fairness has been accorded.
Similarly, the Court not wearing a wig (or robe) at the interlocutory hearing speaks neither to the judicial functions exercised nor to the question of the Court’s impartiality.
Second preliminary issue – clarification of the position of the second applicant
Various suggestions were made by the second applicant at the interlocutory hearing that she was not a participant in the making of the interlocutory applications and had not been kept appraised of the status of the proceedings in general, the interlocutory applications and the evidence of the first applicant in support thereof.
In the absence of any evidence to the contrary it can be accepted that the second applicant consented to the vacation of the litigation guardian order on 19 April 2023, which consent was conveyed to the Court by the applicants’ then Counsel. In doing so, the second applicant elected from that time onwards to take responsibility for carriage of the proceedings insofar as they relate to her. The second applicant was present throughout the final hearing. To the extent that the second applicant indicated, during the interlocutory hearing, that she wished to receive emails separately to her mother by the Court, she was invited, once again[8] to provide a separate email address by a Notice of Address for Service which I had my Associate assist her in completing (and lodging for her) at the conclusion of the interlocutory hearing.
[8] See [20] above by which the applicants were invited to file a Notice of Address for Service jointly or severally, and provide an email address or one each
During the course of the interlocutory hearing, the second applicant confirmed that while she did not join with the first applicant in seeking the relief pertaining to my recusal, she did wish to have the proceedings reopened in order that she be able to raise fresh grounds, albeit while not advancing any. The position of the second respondent in this regard is addressed below.
RECUSAL
Principles
The principles in relation to recusal are now well established: see ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 per the Full Federal Court (Allsop CJ, Kenny & Griffiths JJ), CNY17 v Minister for Immigration and Border Protection (2018) 264 FCR 87 at [10] per Mortimer J (as her Honour then was) and at [153(7)] per Thawley J and QYFM v Minister for Immigration (2023) 409 ALR 65.
The established test for whether there is an apprehension of bias in this context was expressed by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at 83 per Gaudron J as being:
whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
This is often referred to as the “double might” test.
In determining an allegation of apprehended bias against a judge the following steps are taken:
(a)identification of what is said might lead the judge to decide a case other than on its legal and factual merits and as a result of a neutral evaluation;
(b)articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on a neutral evaluation of its merits; and
(c)a consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
An allegation of bias against a judge on the basis of prejudgment is a serious matter, not the least because it carries with it the suggestion that the judge has failed to adhere to their judicial oath.
The test assumes that a hypothetical, fair-minded lay observer is sufficiently attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias: see Johnson v Johnson (No 3) (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [47] to [48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ, Isbester v Knox City Council (2015) CLR 135 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J and Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746 at [15] to [21] per Flick J and QYFM at [47] to [48] per Kiefel CJ and Gageler J.
By reference to the 15 May Affidavit, a summary of the first applicant’s submission on recusal distils the following bases for it:
(a)the applicants have lost confidence in the Court’s ability to fairly and objectively preside because “¾ of the hearing on 19 April 2023 was devoted to discussed Form 866D, which shows that the Judge did not familiarise herself with the applicants case”;
(b)the Court allegedly declined a request for an extension of time (at the directions hearing on 9 May 2023) saying it is not a criminal court and discouraging the applicants from lodging new grounds after their Counsel withdrew;
(c)at the directions hearing, the Court commented that it was “not the problem of the Court” that there was no interpreter at the hearing on 19 April 2023;
(d)that the Court made the first applicant apologise for sending ex parte emails, which violates principles of fairness and equality at law; and
(e)the applicants (errors in original):
suspect it might be conflict of interests, given that Judge Given was identified herself as converted Jew on the first hearing and could have pre-justice to our case largely based on faith and judaism and it is all can be former damage over reputation being exposed to community through discussion Direct or indirect conflict of interests of the judge Court impact ability to make unbiased decision.

In summary, there are two bases for the recusal application:
(a)that the applicants were denied procedural fairness (seemingly a combination of the final hearing and the directions hearing) by reference to the matters set out at [65(a)] to [65(d)] above; and
(b)on the basis of the subject matter of the disclosure (see [65(e)] above).
First applicant’s submissions
At the interlocutory hearing, the first applicant made general allusions in relation to both bases for the recusal application. Despite being pressed to explain the bases upon which she claimed the applicants were denied procedural fairness by the Court, nothing specific was forthcoming and the submissions and evidence filed in support of the interlocutory applications did not elucidate this further than is set out at [65] above. Moreover, it seemed from the submissions at the interlocutory hearing that the focus of the procedural fairness basis of recusal was the conduct of the final hearing, and not matters arising from the directions hearing, in contrast to the content of the 15 May Affidavit as summarised at [65] above.[9]
[9] See for example, Transcript 15 August 2023 at T43.9 to T43.19
With respect, the first applicant’s complaints appear to pertain to her misunderstanding of the nature of that hearing (see [23] above) and her unmet expectations in that regard. Various, oscillating allegations were made in respect of each of the respective Counsel who appeared on that occasion. Contrary to the assertions of the first applicant at the interlocutory hearing, there is nothing arising either from the Court’s observations at the final hearing, the transcript thereof or from any evidence before the Court to suggest that either Ms Yu (who appeared for the applicants) nor Mr Kaplan, presented the cases of their respective clients in anything other than a proper, measured and fair way. Neither Counsel appeared, as was alleged by the first applicant, to be unprepared or unfamiliar with the case. Misapprehensions by the first applicant about the focus of submissions on particular issues appear to arise, again respectfully, from her misapprehension and unfounded expectations about the nature and form that the hearing would take, and a lack of understanding of the relevance of the Form 866D to the issues canvassed at hearing.
Minister’s submissions
Somewhat surprisingly, the Minister initially took no position in respect of the recusal application. Just as it is well established in terms of decision making that an open mind is not an empty mind,[10] a model litigant is not a neutral litigant.
[10] See R v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 554 Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] per Gleeson CJ and Gummow J, Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 per Rares and Jagot JJ
To the contrary, and as the Legal Services Directions 2017 (Cth) make clear:
The obligation does not prevent the Commonwealth and Commonwealth agencies from acting firmly and properly to protect their interests.[11]
which interests are, of course, the public interest.
[11] See Schedule B, item 2, note 4 to the Legal Services Directions 2017 (Cth)
Having expressed my surprise to the Minster’s Counsel, at least to the absence of any potential waiver argument having been made, Counsel for the Minister sought a brief adjournment to seek additional instructions. The applicants did not oppose that adjournment.
When the interlocutory hearing resumed, the Minister’s position was clarified to resist the recusal on the disclosure basis because the applicants had waived any right to make such an application by providing the instructions they had at the final hearing. However, the Minister did not make a waiver submission in respect of the procedural fairness basis for the recusal application.
While one would not expect the Minister to express any particular view as to the individual composition of the Court, given the existence of a well-established test for judicial recusal (see [64] above) it is odd that the Minister is unable to advance an independent position about the application of that test to the facts, circumstances and evidence in this case. That is moreso given the obligation of all parties to the Court to conduct litigation in accordance with the overarching purpose of civil practice and procedure provisions: see ss 190 and 191 of the Court Act. However, the recusal application will be considered on the basis that the Minister neither opposed, nor contended for, recusal.
Consideration
Recusal applications are serious matters and should be neither lightly acceded to, nor lightly refused: see Young v Hughes Trueman Pty Ltd (No 5) [2017] FCA 690 per Bromwich J at [4]. Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias: see Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674 at 689 per Kirby P.
The test is to be applied through the prism of the hypothetical fair-minded lay observer who, while not a lawyer nor assumed to have a detailed knowledge of the law, is taken to be reasonable and to not be “wholly uninformed and uninstructed about the law in general or the issue to be decided”: Johnson (supra) at [53] per Kirby J citing R v George (1987) 9 NSWLR 527 at 536 per Street CJ and QYFM (supra) at [45] to [48] per Kiefel CJ and Gageler J.
It is necessary to attribute to the fair-minded lay observer knowledge of all of the circumstances of the case: CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385 at [39] per Meagher JA, which will also include any salient parts of practice and procedure, some of which will be outlined where relevant.
Procedural fairness basis
In relation to the procedural fairness basis of the recusal application, the first applicant has not pointed to a basis which has a logical connection to a feared deviation from a course of deciding a case on its merits (see Ebner (supra) at [8]). The height of the submissions (albeit no evidence) advanced before the Court at the interlocutory hearing was that the first applicant had a subjective feeling that she had not received a “fair judgment”, despite the fact that the Court had not delivered any judgment in the matter. The first applicant said that:
I don’t trust the fair hearing any longer. I feel that you will, kind of – I don’t feel that you are impartial. I mean, I don’t know the reasons. I cannot blame the judge or anything like that, but I immediately said that I don’t feel that it will be a fair judgment. I wanted to change the judge. I don’t know the reasons.[12]
[12] Transcript 15 August 2023 T17.37 to 17.40
Further, the matters alleged by the first applicant as giving rise to the procedural fairness basis for the recusal application did not occur as alleged and, as such, fail at a factual level.
A fair-minded lay observer would be made aware that, at the final hearing, the Court heard from the respective Counsel as they ventilated the issues raised for the parties.
To the extent that the case as advanced for the applicants led to a discussion of the Form 866D[13] this was relevant to a ground raised for the applicants and specifically, the manner in which it was met by the Minister. The request from the Court that the Form 866D be provided as at a relevant point in time does not reflect any unpreparedness on the part of either Counsel (as was alleged by the first applicant during the course of the interlocutory hearing), nor the Court. It also does not reflect any unfamiliarity of the Court with the applicants’ protection claims.
[13] See [65(a)] above
Rather, and said with respect, the unhappiness expressed by the first applicant in relation to the focus of exchanges between the Bench and the respective parties’ Counsel at the final hearing, stems from her misapprehension that the Court would operate in the same manner as the Tribunal, and would determine the applicant’s protection claims. Any disappointment that either or both the applicants may have as a result of not having had an opportunity to recount their claims and which leads them to misunderstand the complexities of the matters being advanced by their Counsel at hearing, does not legitimately give rise to any matter which needs to be considered in relation to the double might test. There is nothing arising from the final hearing or the detailed submissions of the parties as advanced, which would cause a fair‑minded lay observer to reasonably apprehend the Court judge might not bring an impartial and unprejudiced mind to the question being decided, namely whether the decision of the Tribunal is affected by jurisdictional error. That is particularly so having regard to the principles set out at [75] above.
The next basis upon which the Court is asked to recuse itself is that the applicants were denied “an extension of time”[14] and were discouraged from lodging new grounds after their Counsel withdrew. Firstly this mischaracterises the exchange which took place between the Court and the applicants at the directions hearing. At a certain juncture at that directions hearing, the first applicant made submissions to the effect that the applicants needed time to find a new lawyer, including for the purposes of preparing a written submission within the grant of leave made at the conclusion of the hearing.
[14] See [65(b)] above
As part of that exchange the Court explained that, unlike in criminal proceedings,[15] in the migration jurisdiction there was no right to be legally represented and that the applicants had extensive opportunities since the commencement of their proceedings in 2018 to advance their case. The Court also indicated that there appeared to be limited utility in an extension to file the two page submission. It will be remembered that the grant of leave was intended to be for a submission in reply to anything filed for the Minister in relation to an issue which was now no longer being pressed. As such the Minister had already indicated that no 2 page submission would be forthcoming for him, and there would be nothing to which the applicants would be replying. The Court explained that if the applicants wished to amend, the case would need to be reopened. The applicants did not seek leave to reopen their case in order that they might raise new grounds. The applicants had been given two opportunities to amend their pleadings prior to the final hearing, each of which they availed themselves with the assistance of their Counsel. The matter had proceeded to a final hearing.
[15] Ibid
In the full context of the case and where the pleadings had closed, the hearing concluded and judgment was reserved, I am not satisfied that a hypothetical fair-minded lay observer, properly informed of that context and relevant practice and procedure, would apprehend anything arising from an explanation to the applicants about this jurisdiction, that there was nothing for them to necessarily file or that, if they did, the Court would in fact consider it, which might lead the Court to decide this case other than on its legal and factual merits.
The next basis upon which it is alleged that an apprehension of bias might be discerned is that at the directions hearing the Court is alleged to have said that the lack of interpreter at final hearing, at which time when the applicants were represented by Counsel, was “not the problem” of the Court.[16]
[16] See [65(c)] above
A review of the transcript of the proceedings on that occasion reveals no such statement having been made in relation to the provision of the interpreter, or at all. Rather, the Court explained that because at the final hearing of the matter the applicants were represented by a barrister it is not the practice of the Federal Circuit and Family Court to provide an interpreter. It was explained to the applicants that the purpose of a Court-provided interpreter is to enable a party to communicate with the Judge. Where a party is represented, an interpreter is not provided, however if a party wishes to have the benefit of such a service to enhance their understanding of the proceedings, they are not prevented from arranging this for themselves.[17]
[17] Transcript 9 May 2023 T3.14 to T3.20
A hypothetical fair-minded lay observer, properly informed, would have within that information the aforementioned practice of the Court. It should also be borne in mind that the entire purpose of the directions hearing held on 9 May 2023 was to provide to the applicants an explanation of this Court’s practice and procedure and clarify for them a number of misapprehensions they appeared to hold. The directions hearing was listed of the Court’s own motion and for the benefit of the applicants, to allay any misapprehensions. Contextually, the explanation of the Court’s practice, in which the Court did not say the words attributed to it by the first applicant, would not cause the hypothetical lay observer to apprehend that the Court would resolve the questions required for determination on anything other than their legal and factual merits.
Next, the first applicant says she was “made” to apologise for sending ex parte emails to the Court.[18] Again, the transcript of the hearing on 9 May 2023 does not bear out such an allegation. The transcript reflects the first applicant apologising in case the email/s “sounded inappropriate”[19], but such an apology was neither requested, let alone demanded, from the applicants. The hypothetical observer would be informed of the general prohibition on ex parte communication, as was explained to the applicants at the directions hearing. The rationale for this was also explained and the applicants were asked to consider the scenario in reverse and to reflect on the fact that if the solicitors for the Minister were profusely emailing the Court in the absence of the applicants, they wouldn’t much like it. Procedural fairness is not a one-way street. That being so, requesting that the applicants not conduct themselves in a manner which was potentially unfair or prejudicial to the Minister, would not, in my view, give rise to an apprehension of bias on my part that it might lead me to decide this case other than on its legal and factual merits.
[18] See [65(d)] above
[19] Transcript 9 May 2023 T3.40 to T3.41
Each of the matters addressed above fail at the first hurdle insofar as the conduct alleged did not arise as contended for, such that it could even be considered as being a matter which exists such to be able to pass successfully through the second part of the double might test.
Disclosure basis
In respect of the allegation pertaining to the Court’s disclosure, which is said to give rise to a “conflict of interest”, the highest at which this is put is that the first applicant suspects that the subject matter of the disclosure might affect the Court’s ability to make an unbiased decision, intertwined this with an apparent concern that there might be discussion about the applicants, presumably being reference to the Jewish community. [20]
[20] See [65(e)] above
As already noted, I made the disclosure to the parties at the commencement of the final hearing. In doing so I expressed my preliminary view that the subject matter of the disclosure would not cause me any difficulty in determining the case, but that I was open to hearing the parties on the question. This is the first matter about which the hypothetical lay observer would be informed.
Next, in the absence of the first applicant being present, I did not wish for the hearing to proceed until each of the applicants had been given the opportunity to consider that information, form a view and provide instructions accordingly. This is the second matter about which the hypothetical lay observer would be informed.
With the benefit of an adjournment, and presumably in consultation with their Counsel the applicants instructed their Counsel that they had “no difficulty” with the Court hearing the case and, as such made no recusal application. There is no evidence or even allegation before me that Counsel did not have those instructions or otherwise misspoke.
In those circumstances, the applicants waived their right to make the recusal application on the basis of the disclosure. However, the Court has also considered the requisite test in the event that the conclusion as to waiver is incorrect.
The first applicant appears to say that the subject matter of the disclosure is a matter which might lead me to decide the applicants’ case on a basis other than its legal and factual merits. Other than the mere fact itself, the applicants have not articulated a logical connection between that matter and the feared deviation from the course of deciding the case on a neutral evaluation of the merits. There seems to be a suggestion that details of the case might somehow leak into the Jewish community for discussion, however there is no basis identified for that assertion.
It is well established that judges by their training and experience are able to bring a detached mind to the task at hand: see R v Leckie; Ex parte Felman (1977) 52 ALJR 155 at 160. As articulated by the Full Court in ALA15 (supra), judges take an oath to do justice to all manner of people without fear or favour, affection or ill-will. Further and as Mason J (as his Honour then was) said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
The assertion that a judge sharing a similar trait, origin or faith as a party does not, as against the profundity of the judicial oath, and the confidentiality which attends Court proceedings give rise to a basis for recusal, in and of itself. The unfounded suggestion that the Court should recuse itself because hearing the case might lead to community gossip, has not been particularised to address the relevant test regarding how the matter might be determined other than on its merits and is not a relevant consideration in the recusal application, and ignores the obligations of confidentiality on the Court and Court staff.
The timing and juncture at which the first applicant brought the recusal application is also a matter of moment. In essence the hypothetical lay observer would also be informed that the information upon which the applicants now seek to rely was proffered by the Court itself so that the applicants could consider their position and, in advance, what if any apprehension of bias this might cause them. With that knowledge and the benefit of Counsel experienced in this jurisdiction, the applicants can be taken to have made a conscious, informed decision to not oppose my continuing to hear the matter. That was a set of circumstances which remained extant until mid-May 2023. Even if not formally giving rise to a basis of waiver, those factors remain relevant including as to the timing and circumstances in which the recusal application was eventually made.
To the knowledge of the Court, and in the absence of any allegation or evidence to the contrary, the applicants being properly informed and advised, instructed Counsel not to make any recusal application. It was only at a later date, having lost their representative and in a flurry of correspondence that they sought to have me replaced (or, as the first applicant suggests, the matter moved to another “division” of the Court, whatever that might mean). The proceedings are, properly, in the Court’s Migration division. There is no basis upon which the proceedings could have been brought within the Court’s Fair Work or General Federal Law Divisions.

The hypothetical lay observer would also be informed no part of the proposed further amended application or the final hearing before me focused on the applicants’ Judaism as forming part of the jurisdictional error alleged in the Tribunal’s decision. Even if that were not so, and grounds were advanced in respect of their claimed Judaism, I am not satisfied that the applicants have established any connection between me, Jewish faith and/or the Jewish community which might distract me from my judicial oath and the determination of the question of whether the Tribunal erred at law in deciding their case, such that I should recuse myself. Neither this Court, nor any of my brother or sister judges would be determining the question of the applicants’ respective faith or the impact that it or their Judaism has on their protection claims. The only question for this Court is whether the Tribunal adhered to its jurisdiction and processes such that its decision was made according to law.
Conclusion
I am of the view that the Court’s disclosure, which was made out of an abundance of caution for the benefit of all parties at the commencement of the final hearing, is being utilised by the first applicant in an attempt to potentially disrupt and/or delay the current proceedings.
It is open to infer, and I do, that rather than there being any logical or reasonable basis to make the recusal application, the first applicant is less concerned with my Judaism and more desirous in engaging in “judge shopping”. The volume of cases in this Court are such that no judge should lightly shirk their responsibility to hear a matter simply because a party holds subjective views which do not otherwise meet the requisite test.
The first applicant has failed to identify (beyond mere assertion and suspicion) any basis upon which a fair-minded lay observer might consider that the Court might not undertake determination of the applicants’ judicial review application other than on the law and the respective merit of the case.
There is not a sufficient basis in the present case upon which the requisite observer would logically consider that the facts the subject matter of the disclosure might lead me to diverge deciding the applicants’ judicial review application on its merits.
Accordingly, the application that I recuse myself is refused and the remaining prayers for relief which are sought by the first application will be determined by me.
LITIGATION GUARDIAN ORDER
As already outlined, a litigation guardian order was made in this matter at the first Court date. That order was made by consent and had the effect that the first applicant was appointed as the litigation guardian for the second applicant. There is no evidence to suggest that the order was sought, nor consented to, for any reason other than that at the time the proceedings were commenced the second applicant was a minor, noting that she was in fact 17 years of age.
The parties did not specifically direct their submissions to this issue at the interlocutory hearing beyond two general categories of submissions made by the first and second applicants respectively. Those submissions were in conflict to a degree.
At each of the directions hearing and the interlocutory hearing, the first applicant sought to maintain that the second applicant is not an adult and also suffering from mental health issues which preclude her ability to fully apprehend or participate in the proceedings. The first applicant made a submission to the effect that, unlike herself (an adult), the second applicant was a “young girl”. While it can be accepted that the first applicant might consider the second applicant to be other than an adult on the basis that she is her child, and that she is understandably protective of her daughter, the fact remains that as at the date of the interlocutory hearing the second applicant is 22 years of age. The second applicant is not a child. The second applicant is an adult.
There was no evidence before me that the second applicant has any mental incapacity which would cause her to not be able to continue these proceedings in her own right. Various suggestions have been made by the first applicant to the effect that the second applicant was a child at the time of the events which ground the applicants’ protection claims occurred, and that she cannot manage her affairs in relation to these proceedings. There is no evidential basis before me to support the latter contention, and the fact that the second applicant was a child in Russia does not relevantly intersect with the task of this Court.
The alternative submissions to these, were those made by the second applicant herself, to the effect that she very clearly wished to represent herself in these proceedings.
I have had regard to the principles regarding mental incapacity set out by Bell J in GoddardElliott (A Firm) v Fritsch [2012] VSC 87 both in terms of mental capacity to self-represent and to give instructions to a lawyer.
Aside from there being no evidence before me to suggest that there is any mental incapacity on the part of the second applicant which would require the reinstatement of a litigation guardian, the Court has also formed its own impressions from the interactions with the second applicant.
At each of the directions hearing and interlocutory hearing, the second applicant (whom I understand to now be undertaking tertiary studies), presented as an independent, measured, confident, thoughtful and intelligent person. She addressed the Court with eloquence and even assisted the first applicant in conveying certain submissions. At some junctures at each interlocutory event, submissions made by the first applicant that her daughter was confused or otherwise unable to engage in the proceedings, were met with a very visible eye-roll from the second applicant towards her mother. The Court observed to the applicants at the each of the interlocutory hearings that there was no evidence of confusion on the part of the second applicant. Much less any incapacity which would warrant the Court re-visiting the litigation order which, in any event, was vacated with the consent of both applicants who had the benefit of legal advice as to the effect of its vacation. The second applicant appeared to be a calm, rational and eloquent young person who was perfectly capable of expressing herself and participating in the hearing, despite the occasional and haphazard assertions of the first applicant to the contrary.
To the extent it is still advanced as being relief sought,[21] I am not satisfied that there is any basis upon which a litigation guardian order should be re-made in respect of the second applicant.
[21] See [102] above
REOPENING OF THE CASE AND/OR AMENDMENT
The applicants seek a general, further opportunity to amend their application. As has already been observed above, this should be understood firstly as an application to reopen their case by reason of the fact that the Court reserved judgment on 19 April 2023.
Principles
As the Minister properly contends, the relevant principles attending the question as to whether a matter should be reopened before judgment, were recently and helpfully distilled in Matson v Attorney-General (Cth) [2021] FCA 161 (Matson) per White J where, at [178] to [181], his Honour found as follows:
[178] The principles on which the Court acts when considering an application to reopen a matter before the delivery of judgment are settled. The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 at [48].
[179] In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. The applicant’s present application seems to be in the first and fourth of these categories.
[180] The matters bearing on the interest of justice are various. They include:
·     the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;
·     the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;
·     the significance of the proposed new evidence and submissions in the context of the hearing
·     the explanation for the evidence not having been led at the trial;
·     the likely prejudice to the opposing party if the application is allowed;
·     the potential detriment to the applying party if the application is refused; and
·     any delay by an applicant in seeking leave to reopen.
[181] Regard should also be had generally to the overarching purpose of the Court’s civil practice and procedure provisions stated in ss 37M and 37N of the FCA Act.
In this Court, the equivalent provisions to ss 37M and 37N of the Federal Court Act 1976 (Cth) are ss 190 to 191 of the Court Act.
The matters set out at [180] of Matson should of course be taken to be a non-exhaustive list of factors which regularly arise for consideration in the broad scope of what might, in the circumstances of a particular case, be a matter which informs the interests of the administration of justice.
Submissions
The Minister’s submissions sought, generously, to shoehorn the applicants’ position in this case into one of the four classes of cases identified in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (Bradshaw) per Kenny J at [24] (see [116] above[22]), as being that they sought to adduce fresh evidence. In the instant case I am not entirely persuaded that any of those four categories applies. It is true that the applicants have complained about their dissatisfaction at not having been called to give evidence at the final hearing. However, from the context of that complaint, it is tolerably clear that the evidence they wished to give was in relation to the merits of their protection claims. If that be the case, then even if such an application had been made, it would likely be refused by the Court as being irrelevant to judicial review of the Tribunal’s decision, it being well-established that merits review is no part of this Court’s jurisdiction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Attorney-General (NSW) v Quin (1990) 170 CLR 1.
[22] Summarised in Matson (supra) at [179]
The procedural background in this matter and the submissions made by the applicants in advance of the directions hearing and again at the interlocutory hearing does not appear to be an application to adduce fresh evidence. Rather, it is more in the nature of “buyer’s remorse” at how they chose, via Counsel, to propound their judicial review application. Further, or in the alternative, it is an attempt to delay the proceedings by starting the hearing process again. None of the principles set out in Matson (supra), Bradshaw (supra) or any other decision the Court has been able to locate, is authority for the proposition that the interests of the administration of justice warrant a case being reopened because a party is simply unhappy with how the hearing unfolded, based on some un-calibrated expectations, has changed their mind about their grounds or otherwise would just like “another go”.
The applicants’ various submissions in support of being entitled to reopen their case[23] emerged at the interlocutory hearing as being apparent dissatisfaction with how their case was run by their Counsel. While made in the limited context of the waiver submission to recusal on the disclosure basis, the Minister submitted that there was no evidence before the Court to suggest either that instructions were not taken from the applicants[24] or that their Counsel acted contrary to those instructions. That submission resonates more generally. There is no evidence before the Court to suggest that, in advancing the applicants’ case,[25] Counsel for the applicants did anything other than act on the basis of instructions given to her.
[23] Albeit largely cast in terms of an application to amend
[24] Which, prior to the final hearing on 19 April 2023 and the vacation of the litigation guardian order, was constituted by the first applicant given instructions on each of her own and the second applicant’s behalf
[25] Including on a final basis the presence of each of the applicants on 19 April 2023
However, for the benefit of the applicants and in line with the submissions made by the Minister to that effect, the Court will take the applicants’ submissions as contained in the 15 May Affidavit, as forming the basis for the application to reopen in order to be able to agitate fresh evidence (containing proposed grounds of review). There is an additional basis, being whether the second applicant ought to be able to also have the matter reopened consequent upon the vacation of the litigation guardian order.
Consideration
By the 15 May Affidavit, the allegations made which could at their highest be taken to be potential grounds of review are as follows (errors in original):[26]
a.   Tribunal Member ignored or disregarded letters from members of Jewish community, failed to understand that Jewishness goes through mother, undermined statements of “Best Interest of Child” other [illegible].
b.   Tribunal Member disregarded relevant considerations and paying regards to irrelevant considerations leading interview from political statements which were made in the very first submissions and filling the interview time with irrelevant, improper construction of the relevant act led in result to errors and invalidity.
c.   acting in bad faith as Tribunal Member did not concern himself with confidentiality while writing decision or making his assessment or intimidating distress child during the hearing – Breaching the hearing and bias rules of natural justice, not taking into consideration the child attendance of ultra-orthodox school and later Anglican school not taking into consideration respect towards helpful communities and letters from Minister, Pastor.
d.   Tribunal Member illogically and irrationally wrote his decision, contradicting with himself
e.   Tribunal was unreasonable in adjournment and preventing phycologist or significant other/Rabbi[27]/Priest, friends on the hearing
f.    Failed the right to preserve the identity even name was not recorded correctly Member of Tribunal applied incorrect legal test and failed to provide procedural fairness just recording errors from inferior courts.
[26] Numbering added for ease of reference
[27] Which might alternatively say “Pastor” as the handwriting is difficult to discern
A type-written document annexed to the 15 May Affidavit immediately following the above hand-written grounds, seeks to cavil with the Tribunal’s factual findings. I accept the submissions of the Minister that the aforementioned complaints, together with the type-written document in essence seek merits review. As such, they lack an arguable basis even taken at an impressionistic level.
One further observation must be made in relation to these potential new grounds. While not identical, there is considerable overlap in terms of the aforementioned grounds and the grounds of review which were advanced by the applicants in the originating application. To the extent that the applicants have twice since amended and thereby abandoned the original grounds, their forensic decision to do so is a matter of moment. The grounds in the originating application appear to have been drafted by the first applicant[28] on behalf of the applicants. If what the applicants now wish to say that they were somehow previously hampered by the grounds their Counsel raised, the fact is that they have already had (and taken) the opportunity to raise whatsoever they wished by the filing of the original application. It cannot be said that at the commencement of the proceedings their will was so overborne by Counsel or that they otherwise did not understand the grounds as initially advanced.
[28] Bearing handwriting which matches the first applicant’s Affidavits (see [123] above)
In relation to the question as to whether the second applicant should be given a fresh opportunity to agitate grounds of her own, I am not persuaded that she has been denied such an opportunity. The proposed further amended application upon which the final hearing proceeded[29] alleged errors solely in respect of how the Tribunal had dealt with the second applicant’s claims, to the point where the Minister took a jurisdictional point in respect of the first applicant, albeit which was later abandoned (see [27] above). The height of the second applicant’s concerns as expressed at the directions hearing and the interlocutory hearing appeared to be that there were more than 900 pages of evidence with which she was unfamiliar and that it was difficult to read those 900 pages together with her study and work commitments. The reference to 900 pages is a reference to the Court Book filed in the proceeding for the Minister on 1 February 2019. The Court Book is 915 page long. It is comprised of the relevant documents in the applicants’ case from the making of the visa application until the making of the Tribunal’s decision. Aside from being documents which have been generated by the applicants and/or in their possession since their visa application, a number of the documents contained in the Court Book are family photos and not written documents. The second applicant also made submissions to the effect that she had difficulties in considering the Court Book and its content in the absence of having a legal education.
[29] Subject to the issue of leave still to be determined in the final judgment
The second applicant, who as it was observed was more than 17 years old when the application was made to this Court has been an adult for almost the entirety of the Court proceedings. Despite assertions from the Bar table that she has not followed the case particularly, there is nothing to demonstrate that the materials in this case have not been available to her throughout and that said failure is anything other than by choice.
By reason of the applicants having been represented by Counsel, the applicants remained the recipients of documents served by the Minister. As such, it could not be contended (as would be the case for example if they had been represented by a solicitor) that they have not been in receipt of documents throughout this proceeding.
From the time at which the litigation guardian order was vacated, until delivery of these reasons for judgment, the second applicant has had an additional 4 months to review the Court Book and make any application she wished. None has been forthcoming, other than the interlocutory applications in respect of which she expressly confirmed she joins to the extent they seek leave to reopen/amend. It is the case that the majority of applicants who appear before this Court in the Migration jurisdiction do not have a formal legal education. The Court acknowledges the challenges faced by unrepresented applicants. However, the second applicant, having been educated in Australia for her secondary schooling and fluent in English is significantly more advantaged in her comprehension of the proceedings than most applicants in this jurisdiction, irrespective of her current age.
I also accept the submissions of the Minister that delay is a relevant factor in respect of the second applicant who has had four months since the final hearing, and three months since the directions hearing to make any applications she wished and, in doing so, advance any draft grounds of her own.

I am not persuaded that the second applicant has been unable to present her case or has been denied an opportunity to be heard in the proceedings.
Applying the principles in Matson, the following is concluded in the present case.
There is a public interest, as well as an interest to the parties, in the litigation being conducted efficiently and expeditiously. This is reflected in ss 190 to 191 of the Court Act. In the present case the applicants had:
(a)approximately 4.5 years in which to prepare their case for hearing, with the Court Book being available from 1 February 2019;
(b)several opportunities to amend their originating application (see [125] above) and to raise whatsoever grounds they wished, in respect of which they availed themselves twice with the benefit of legal representation;[30]
(c)the benefit of Counsel, experienced in this jurisdiction, from approximately July 2019 until the conclusion of the final hearing;
(d)a final hearing;
(e)a directions hearing listed of the Court’s own motion to address concerns and misconceptions expressed by the applicants as to the nature of the hearing; and
(f)a half day interlocutory hearing.
[30] On each of 22 July 2019 and 19 April 2023, noting that the question of leave in respect of the latter remains for determination in the final judgment
Even if considering only the steps referred to at [133(a)] to [133(d)] the Court is satisfied that the applicants have had a fair hearing opportunity, which is moreso given the additional steps set out at [133(e)] to [133(f)].
The public bears the costs not only of the Court’s resources which are occupied in relation to many of the aforementioned steps, but ultimately also funds the Minister’s response to the proceedings. In circumstances where the applicants have been afforded hearing opportunities which go beyond the norm, it would not be in the public interest to enable the proceedings to be reopened having regard to considerations of the efficient and expeditious conduct of these proceedings. For the same reasons, the public expectation that the applicants, having had the benefit not only of the additional hearing opportunities but in presenting their case at its best and highest level with the assistance of pro-bono Counsel, would also not be met by the litigation process commencing almost entirely again in circumstances where the applicants have now had almost 5 years in which to put forward their arguments, noting again that they did so themselves at the outset of the proceedings.
In terms of the significance of the new evidence/grounds, the Court repeats the findings at [124] above. The applicants had an opportunity to advance their own grounds. They did so. They also then twice sought to amend those grounds. There is nothing before the Court to indicate that any specific, significant new evidence in support of any new grounds is imminent. No evidence has been specifically identified such that the significance of it can be assessed in the context of the final hearing which took place.
The Minister does not appear to claim any prejudice if the matter were to be reopened, and such prejudice would likely be limited to matters potentially going to the public interest in expeditious litigation and finality of hearing processes. To the extent that any prejudice could arise to the Minsiter, it could likely be ameliorated in part by a costs order. The Minister quite properly submitted that if the Court were to accede to the application and allow the case to be reopened, any order for costs thrown away should be made against the first applicant only up to, and including, 19 April 2023, being the date upon which the litigation guardian order was vacated.
In terms of the counter-detriment to the applicants should leave to reopen not be granted, it is true that, save for delivery of judgment, the proceedings would otherwise be at an end for them. However, against the procedural background set out above, but in particular at [133], the opportunity to present their case in seeking judicial review of the Tribunal’s decision in these proceedings would not been unfairly curtailed.
To the extent that any delay in seeking to reopen the matter can be identified, it is between 19 April 2023 at which point the applicants say they became dissatisfied with the manner in which their case had been presented and the nature of the hearing format, and 16 May 2023 when the interlocutory applications were filed. That was after the Court had explained to them at the directions hearing that the manner in which the hearing had been conducted was the norm for final hearings in judicial review applications in this Court’s Migration jurisdiction and this was selectively interpreted (see [78] to [89] above).
Conclusion
Each of the factors identified as potentially informing the interests of the administration of justice in this case, weighs against the applicants being allowed to reopen the matter prior to delivery of judgment.
The Court is not satisfied that it is in the interests of the administration of justice to enable the case to be reopened so that the applicants and/or specifically the second applicant can raise new or additional grounds of judicial review in all the circumstances of this matter.
DISPOSITION
The applicants[31] have been unsuccessful in establishing an entitlement to the prayers for relief sought by the interlocutory applications. The interlocutory applications must be dismissed. I will so order.
[31] In the case of the recusal application, the first applicant alone
Costs
In relation to costs, I am of the view that despite the second applicant not joining in the recusal application, the nature of the interlocutory applications and the relief sought was such that the issues were in many senses linked and, in any event, merge on judgment with the dismissal of the interlocutory applications in their entirety. Further, it was only at the hearing of the matter that the second applicant sought to distance herself from the recusal application. Despite a submission from the Minister that the costs might be bifurcated depending on various outcomes of the individual prayers for relief sought, I am of the view that in accordance with the principle that costs ought follow the event, that event being the dismissal of the interlocutory applications, that both applicants should be ordered to pay the Minister’s costs of the interlocutory applications.

I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 18 August 2023

File number(s):	SYG 3158 of 2018
Judgment of:	JUDGE GIVEN
Date of judgment:	18 August 2023
Catchwords:	MIGRATION – Recusal application – waiver – whether previously vacated litigation guardian order should be reinstated – whether applicants should be entitled to reopen their case – request by applicants that Judge wear wig in order to appear impartial
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191 Federal Court Act 1976 (Cth) ss 37M, 37N Migration Act 1958 (Cth) s 65
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Attorney-General (NSW) v Quin (1990) 170 CLR 1 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 Choi v Secretary, Dept of Justice and Communities (2022) 405 ALR 714 CNY17 v Minister for Immigration and Border Protection (2018) 264 FCR 87 CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 GoddardElliott (A Firm) v Fritsch [2012] VSC 87 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Isbester v Knox City Council (2015) CLR 135 Johnson v Johnson (No 3) (2000) 201 CLR 488 Kennedy v Secretary, Department of Industry (No 2) [2016] FCA 746 Matson v Attorney-General (Cth) [2021] FCA 161 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 QYFM v Minister for Immigration (2023) 409 ALR 65 R v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 R v George (1987) 9 NSWLR 527 R v Leckie; Ex parte Felman (1977) 52 ALJR 155 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 4] (1986) 6 NSWLR 674 Re JRL; Ex parte CJL (1986) 161 CLR 342 Young v Hughes Trueman Pty Ltd (No 5) [2017] FCA 690
Division:	Division 2 General Federal Law
Number of paragraphs:	143
Date of hearing:	15 August 2023
Solicitor for the Applicants:	In person
Solicitor for the Respondents:	Mr B Kaplan
Solicitor for the Respondents:	Minter Ellison

SYG 3158 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FXF18 First Applicant FXG18 Second Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	18 August 2023

BACKGROUND	[2]
Final hearing	[8]
Events following the final hearing	[18]
Directions hearing	[26]
The interlocutory applications	[28]
Evidence	[39]
PRELIMINARY ISSUES	[47]
First preliminary issue – the attire of the Court	[47]
Second preliminary issue – clarification of the position of the second applicant	[56]
RECUSAL	[59]
Principles	[59]
First applicant’s submissions	[67]
Minister’s submissions	[69]
Consideration	[74]
*Procedural fairness basis*	[77]
*Disclosure basis*	[90]
Conclusion	[101]
LITIGATION GUARDIAN ORDER	[106]
REOPENING OF THE CASE AND/OR AMENDMENT	[115]
Principles	[116]
Submissions	[119]
Consideration	[123]
Conclusion	[140]
DISPOSITION	[142]
Costs	[143]