FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs

FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs involved two applicants, both citizens of the Russian Federation, who had applied for protection visas in Australia on the basis of their Jewish identity and fear of persecution in their home country. Their applications were refused by a delegate of the Minister, a decision that was subsequently affirmed by the Tribunal. The applicants then sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia. After no substantive steps were taken in the proceedings for several years, the case was eventually docketed to a primary judge in December 2022, who listed it for hearing on 19 April 2023. The applicants then filed an application for leave to appeal the primary judge's interlocutory orders and sought an extension of time.

The legal issues before the court included whether the primary judge's reasons for making the interlocutory orders were attended with sufficient doubt to justify a grant of leave to appeal, whether there was a potential for substantial prejudice if leave was not granted, whether the primary judge should have recused herself due to a reasonable apprehension of bias, and whether the primary judge was correct to dismiss the application to reopen the case. The applicants argued that the primary judge should have recused herself due to her conversion to Judaism and that she should have allowed them to make further submissions at the delivery of judgment. The Minister argued that there was no basis for a grant of leave to appeal and that the application should be dismissed.

The court found that the applicants had not demonstrated any basis for concluding that the primary judge's reasoning in declining to recuse herself was attended with sufficient doubt to justify a grant of leave to appeal. The court found that the primary judge's religious faith and gender could not rationally or plausibly be said to give rise to any reasonable apprehension of bias, and that the applicants were not denied any opportunity to make further submissions at the delivery of judgment. The court also found that there was no potential for substantial prejudice if leave was not granted, and that the primary judge was correct to dismiss the application to reopen the case. The court therefore granted an extension of time for the applicants to file an application for leave to appeal, but dismissed the application for leave to appeal itself. The first applicant was also ordered to pay the first respondent's costs, as taxed or agreed.