High Court: July 2023

COURTS AND JUDGES

Bias

In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15 (17 May 2023), the High Court was required to consider whether a judge (Bromwich J), sitting as part of the Full Court of the Federal Court, should have recused himself from the hearing of an appeal by reason of a ‘reasonable apprehension of bias’ (at [64]). In addressing this question, the High Court also addressed the ancillary question of whether the Full Court, and not Bromwich J alone, should have determined the appellant’s application that Bromwich J recuse himself.

The appellant is a citizen of Burkina Faso. In 2013, the appellant was convicted of a drug importation offence and sentenced to imprisonment for ten years with a non-parole period of seven years. The appellant unsuccessfully appealed against his conviction (‘Conviction Appeal’). Before his elevation to the bench, Bromwich J was a senior barrister who occupied the position of the Commonwealth Director of Public Prosecutions. While in this position, Bromwich J appeared for the Crown in the Conviction Appeal.

In 2017, a delegate of the Minister made the decision, pursuant to s 501(3A) of the Migration Act 1958 (Cth), to cancel the appellant’s visa on the basis that the appellant did not pass the ‘character test’ by reason of the sentence of imprisonment (at [8]). In 2019, another delegate of the Minister decided not to revoke the cancellation of the appellant’s visa (the ‘Decision’). The appellant sought a review of the Decision by the Administrative Appeals Tribunal (‘AAT’). The AAT affirmed the decision.