Background
The appellants sought Protection (Class XA) (Subclass 866) visas. In 2018, the Administrative Appeals Tribunal affirmed a delegate’s 2015 decision refusing the visas. The Federal Circuit and Family Court of Australia (Division 2) later dismissed the appellants’ judicial-review application.
On appeal to the Federal Court, the appellants advanced five grounds. The first alleged that the primary judge failed to find that the Tribunal had overlooked claims or integers of claims. The second alleged that the primary judge should have recused himself because he had previously served as a Tribunal member. Grounds three through five challenged the Tribunal’s credibility findings and treatment of claims concerning political affiliation, imputed political opinion, and the risk of abduction or extortion.
The first appellant appeared in person for the appellants. He filed no written submissions despite an order requiring them and made oral submissions about the difficulties the family would face if returned to Bangladesh, rather than addressing the pleaded appeal grounds.
The Court’s Holding
Justice Downes refused leave to advance grounds three, four, and five. Those grounds had appeared in an earlier version of the appellants’ application below but were abandoned when represented appellants filed a further amended application. They provided no explanation for abandoning the grounds or seeking to revive them on appeal, and allowing them to proceed would prejudice the Minister because the Minister’s further appeal rights would be limited.
The Court rejected ground one because the alleged failure to consider claims or integers had not been argued before the primary judge. The case below instead alleged a constructive failure to exercise jurisdiction through failure to make an obvious inquiry. A primary judge does not err by failing to decide a contention that was never raised.
The recusal ground also failed. No recusal issue had been raised below, and the appellants identified no logical connection between the primary judge’s former Tribunal service and an inability to decide the case impartially. The judge joined the Tribunal in 2022, years after the 2018 decision under review, and had no role in, knowledge of, or connection with that decision. The Federal Court dismissed the appeal and ordered the appellants to pay the Minister’s fixed costs of $8,907.
Key Takeaways
- Fresh judicial-review grounds generally require leave on appeal, particularly when the grounds were deliberately abandoned in the court below.
- A primary judge does not commit appealable error by failing to address an argument that the parties did not present.
- Prior service on the same tribunal, without a connection to the particular decision under review, does not by itself establish actual or apprehended bias.
Why It Matters
The decision underscores the procedural limits of migration appeals. An appeal is not ordinarily an opportunity to revive abandoned grounds or present new challenges to the administrative decision without explanation and leave.
It also clarifies that a judge’s earlier institutional connection with an administrative tribunal is insufficient, standing alone, to require recusal. A party alleging apprehended bias must identify a logical connection between the asserted circumstance and the feared departure from impartial decision-making.