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

The High Court of Australia considered an appeal by QYFM, a citizen of Burkina Faso, against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the appellant's application for judicial review of a decision not to revoke the cancellation of his visa, which had been based on his failure to pass the character test due to a substantial criminal record. The appellant sought the recusal of a judge from the Full Court of the Federal Court of Australia, arguing there was a reasonable apprehension of bias. This apprehension arose from the judge's prior appearance as counsel for the Crown in opposition to the appellant's unsuccessful appeal against his conviction, which was causally related to the visa cancellation.

The legal issues before the High Court were whether an application to disqualify a judge for apprehended bias should be determined by the challenged judge alone or by the full bench constituted to hear the appeal, and whether a reasonable apprehension of bias vitiated the Full Court's jurisdiction. The court was required to consider whether a fair-minded lay observer might reasonably apprehend that the judge might not be impartial, given their previous role in opposing the appellant's appeal against the conviction that underpinned the visa cancellation.

The High Court reasoned that an objection to jurisdiction based on apprehended bias ought to have been considered and determined by the Full Court, not by the individual judge in isolation. The Court found that the objection ought to have been upheld, leading to the conclusion that apprehended bias had indeed been established. The legal principle applied was that the test for apprehended bias involves assessing whether a fair-minded lay observer, aware of all the relevant circumstances, would reasonably apprehend that the judge might not bring an impartial mind to the determination of the case. The Court determined that the circumstances of the challenged judge's prior involvement created such an apprehension.

Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court of Australia, and remitted the matter to the Federal Court to be heard and determined by a differently constituted Full Court. The appellant was also awarded costs.