AEE17 v Minister for Immigration - Appeal Dismissed

Original Word Document (103.8 KB) Federal Court of Australia

AEE17 v Minister for Immigration [2026] FCA 466

| Appeal from: | AEE17 v Minister for Immigration & An o r [2018] FCCA 1156 |

| File number(s): | NSD 662 of 2018 |

| Judgment of: | ANDERSON J |

| Date of judgment: | 20 April 2026 |

| Catchwords: | MIGRATION – where Immigration Assessment Authority (IAA) affirmed decision of delegate to refuse appellant’s application for a Safe Haven Enterprise Visa (subclass 790) (SHEV) – appellant sought judicial review in the then Federal Circuit Court – appellant sought to rely on amended application for judicial review which replaced all the grounds of review shortly before hearing – leave to raise new ground of appeal – where Secretary of Department gave material to Immigration Assessment Authority (IAA) pursuant to s 473CB of Migration Act 1958 (Cth) – where s 473DB requires IAA to review decision by considering material given by Secretary – whether IAA considered earlier country information report in statement of reasons – whether IAA required to consider earlier country information report in statement of reasons – leave to raise new ground not granted.

COURTS AND JUDGES – apprehended bias – where primary judge engaged in robust questioning of appellant’s counsel as to the merit of the appellant’s claims – no apprehended bias established – appeal dismissed. |

| Legislation: | Migration Act 1958 (Cth)  ss 473CB (repealed), 473DB (repealed), 473DC (repealed), 473GA (repealed), 473GD (repealed), Pt 7AA (repealed) |

| Cases cited: | AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; [2015] FCA 804

Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44

ATD18 v Minister for Home Affairs [2020] FCA 593

Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33

Bul l more v Minister for Immigration, Citizenship, Migrant Services a nd Multicultural Affairs (2024) 304 FCR 370; [2024] FCAFC 99

BZD17 v Minister f or Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

DHW17 v Minister for Home Affairs [2019] FCA 985

Director of Public Prosecutions (Vic) v Smith (2024) 98 ALJR 1163; [2024] HCA 32

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Galea v Galea (1990) 19 NSWLR 263

Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530; [2019] FCAFC 144

Gindy v Capital Lawyers Pty Ltd (2022) 374 FLR 1; [2022] ACTCA 66

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Metwally v University of Wollongong (1985) 60 ALJR 68; [1985] HCA 28

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

Sunshine Loans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 75 |

| Date of hearing: | 2 April 2026 |

| Counsel for the Appellant: | Mr M Hosking (Pro Bono) |

| Counsel for the First Respondent: | Mr B Kaplan Mr J Tsaousidis |

| Solicitor for the First Respondent: | Mills Oakley |
ORDERS

| NSD 662 of 2018 |

| BETWEEN: | AEE17

Appellant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent | |

| order made by: | ANDERSON J |
| DATE OF ORDER: | 20 April 2026 |
THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The Appellant must pay the First Respondent’s costs of the appeal as agreed or as assessed by a Registrar of the Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1 By an amended notice of appeal filed on 16 May 2025, the appellant appeals from the judgment of the then Federal Circuit Court of Australia given on 9 April 2018: AEE17 v Minister for Immigration [2018] FCCA 1156 (Primary Judgment).  That court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 December 2016 (Authority’s Decision).  The Authority affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

2 By amended ground of appeal one, the appellant contends that the decision of the Federal Circuit Court is affected by apprehended bias.  In summary, the ground is put on the basis that:

(a) the primary judge made remarks to, and asked questions of, counsel who represented the appellant at the hearing before that Court (the Appellant’s Counsel) of a nature, and in a manner, which indicated the primary judge had an antipathy to the Appellant’s Counsel; and

(b) the exchanges between the primary judge and the Appellant’s Counsel were such that a fair-minded lay observer might reasonably have apprehended that the primary judge might not bring an impartial mind to the resolution of the appellant’s application for judicial review.

3 If this Court accepts that the decision of the Federal Circuit Court is affected by apprehended bias, that is a sufficient basis to allow the appeal and to set aside the Primary Judgment.  Ordinarily, this Court would then remit the matter to the Federal Circuit and Family Court of Australia (Division 2), differently constituted, to hear the matter according to law.  The appellant initially submitted that, given the significant period of time that has elapsed since the date of the Primary Judgment, it would instead be desirable for this Court to consider for itself whether the Authority’s decision is affected by jurisdictional error.  However, in oral submissions, Mr Hosking of counsel, who appeared pro bono for the appellant (and who was not the appellant’s counsel before the primary judge) accepted that if apprehended bias is established, the proper course is for this Court to remit the matter to the Federal Circuit and Family Court of Australia (Division 2), without addressing whether the Federal Circuit Court was correct to dismiss the application for judicial review: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-3, 117; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530; [2019] FCAFC 144 at [45]-50.

4 By amended grounds of appeal two and three, the appellant contends, by his written submissions dated 30 July 2025, that the Authority’s decision is affected by jurisdictional error because of the Authority’s failure to deal with the information in paragraphs 3.40 and 3.41 of the DFAT Country Information Report for Sri Lanka dated 16 February 2015 (the February 2015 Report).  The appellant contends that the Authority’s decision is affected by jurisdictional error:

(1) ground two: if the February 2015 Report was before the Authority, then the jurisdictional error arises from the Authority’s failure to consider the information in paragraphs 3.40 and 3.41 of the February 2015 Report, which was sufficiently important to the review that the Authority was required to consider it; and

(2) ground three: alternatively, if the February 2015 Report was not before the Authority, then the jurisdictional error arises from the Secretary’s failure to comply with the requirement in s 473CB(1)(c) of the Migration Act 1958 (Cth) (Act) (as then in force) with respect to the report.

5 The appellant acknowledges that these arguments were not advanced before the primary judge.  At the hearing of the appeal, Mr Hosking advised that the appellant no longer pressed amended ground of appeal three because the Minister’s representatives provided evidence that, in fact, that February 2015 report was provided by the Secretary to the IAA.

Background

SHEV application, delegate’s decision and Authority’s decision

6 The appellant is a citizen of Sri Lanka.  He arrived in Australia on 28 August 2012, and on 18 August 2015 he was invited to apply for a Temporary Protection (subclass 785) visa or a SHEV.

7 On 21 October 2015, the appellant applied for a SHEV.  As part of that application, the appellant provided a statement about the reasons he feared harm in Sri Lanka.

8 On 23 August 2016, a delegate of the Minister decided to refuse to grant the appellant a SHEV.

9 In her decision record, the delegate referred to both the February 2015 Report and the DFAT Country Information Report for Sri Lanka dated 18 December 2015 (the December 2015 Report).  Thus, it is clear that both the February 2015 Report and the December 2015 Report were before the delegate.

10 On 25 August 2016, the Minister referred the delegate’s decision to the Authority for review under Pt 7AA of the Act (as then in force).

11 The appellant made submissions to the Authority on 19 September 2016 and 21 September 2016.  He also provided a statement dated 19 September 2016 and supporting documents.

12 On 16 December 2016, the Authority decided to affirm the delegate’s decision.

Federal Circuit Court hearing and decision

13 On 12 January 2017, the appellant applied to the Federal Circuit Court for judicial review of the Authority’s Decision.

14 That application was ultimately listed for hearing on 9 April 2018.

15 Until 6 April 2018, the appellant was unrepresented in the proceeding before the Federal Circuit Court.

16 On 6 April 2018 (a Friday), the appellant engaged the Appellant’s Counsel to represent him at the hearing on 9 April 2018 (the Monday).

17 At the hearing on 9 April 2018, the Appellant’s Counsel sought to rely on an amended application for judicial review, which replaced all the grounds in the application filed on 12 January 2017 with a single ground concerning a notification given under s 473GB of the Act.

18 At the conclusion of the hearing on 9 April 2018, the primary judge delivered the Primary Judgment ex tempore and refused the appellant leave to rely on the amended application (Primary Judgment at [18]) and otherwise dismissed the application for judicial review (Primary Judgment at [19]).

19 The transcript of the hearing on 9 April 2018 is Annexure PT-1 to the Appellant’s Affidavit dated 16 May 2025.  At that hearing, the following exchanges occurred between the primary judge (PJ) and the Appellant’s Counsel (AC) at [T2.1-13]:

AC: Yes, may it please the court, my name is [AC]. I appear for the applicant.

PJ: Yes, Mr [AC]. I do know your name.

…

AC: Yes, your Honour. I was just putting it on record, that’s all. And—

PJ: If you fill out the appearance slip, then that will go onto the record.

(emphasis added).

20 The appellant relies upon an exchange in which the primary judge admonished the Appellant’s Counsel for failing to notify the Court that an interpreter would not be required for the hearing that day.

21 The respondent’s counsel opposed the grant of leave to rely on an amended application.

22 The Appellant’s Counsel then commenced his submissions in support of being allowed to rely on the amended application.  A short way into those submissions, the following exchange occurred at T6.1-T7.34:

PJ: Mr [AC], can you just get to the point? [s 473GA of the Act] doesn’t apply here,

does it?

AC: No.

PJ: Well, why read it out?

AC: Because it travels with this document in terms of the procedural fairness. I just want to be exhaustive, your Honour. I will cut—

PJ: I’m not going to let you be exhaustive. This is an application to amend raised on the day of the hearing, okay? So just get to it. Get to the point.

AC: Sorry, your Honour. I’m just— your Honour, I’m not sure if I’ve annoyed your Honour or something, but, your Honour, I’m not used to being treated rudely.

PJ: I just asked you to move on. Mr [AC], I’m not treating you rudely.

AC: I will go on then, please. It’s— please, can I take my—

PJ: I’m just telling you to get to the point. Your job is to assist the court to arrive at a decision.

AC: Yes.

PJ: It’s not to say whatever you like.

AC: I’m not here to say whatever I like, your Honour. I’m here for a specific purpose, which is to—

PJ: All right. So I’m asking you to say something that’s relevant to the ground that you seek to raise.

AC: Okay, your Honour. If— perhaps, then, your Honour, if it’s going to be like this, then perhaps I should rely on the written submissions. Okay. Because, your Honour, I’m not used to— I’m not going to put up with—

PJ: You have the opportunity to say what you like that’s relevant to the ground.

AC: Okay. So, your Honour, then we come to section 473GB, and there we see the section applies to a document or information— can you hear? Document or information— again I note— and I’m sorry that this is not— in my attempts to be exhaustive here, I hope that I’m not in any way upsetting your Honour, but if I could take your Honour back to 473DC, and there we see as close as get [sic] in this— in the Act to a definition of new information. And we see here, subject to this part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information— new information.

PJ: Have you read the decision in BBS16?

AC: Yes, I have, your Honour.

PJ: Doesn’t that cut against what you’re saying?

AC: Okay. Your Honour, if your Honour is not prepared to let me go through my submissions, your Honour—

PJ: Mr— just answer my question.

AC: I’ve read it.

PJ: Doesn’t that cut against what you’re saying?

AC: Your Honour, in my submission this is a different factual scenario, and when read with [SZMTA]— and if your Honour has made up your mind, then please, your Honour, I’m not here to waste anybody’s time.

PJ: If I’ve made up my mind, Mr [AC], why would I be asking questions?

AC: Well, your Honour seems to— it’s the nature of the questions that are being asked.

PJ: Ones that you are unable to answer?

AC: Okay, your Honour. It’s at the point now where I don’t think that I can in any way assist your Honour further. Please, your Honour. You’ve got the written submissions there.

23 At this point, the Appellant’s Counsel appears to have resumed his seat.  The primary judge asked him to stand up, and the following exchange occurred between the primary judge and the Appellant’s Counsel at T7.36-T9.7:

PJ: [AC], stand up again. I don’t know why you’re being so upset.

AC: Your Honour, I’m upset about the way that I’m being spoken to, but I’m upset about the way that I’m being – that I’ve been spoken to this morning – today - - -

PJ: You don’t have to raise your voice.

AC: - - - in a way that I’m trying to do best my client [sic]. My client has an awful lot riding on this.

PJ: [AC], just calm down. Just stop raising your voice - - -

AC: Your Honour, I’ve always – in any court that I appear in, I try to do my best, and I try to do my best to assist the court. I am not in any trying to – in any way, put your Honour in a difficult position. I – all I asked for was just to be treated with some modicum of respect.

PJ: Why are you raising your voice? If you want to be …

AC: I raised my voice, your Honour, because I’m upset about this. I’m about the way that I’m being spoken to.

PJ: [AC], do you understand when a court such as this – with – which has very little time to hear all the cases that it is asked to hear is time and again asked to deal with points that are only raised at the very last minute – why there might be some level of frustration at that point.

AC: Okay. And, your Honour, you don’t think that - - -

PJ: Will you please answer - - -

AC: - - - might be shared by this side of the bar table as well?

PJ: Please answer my question. Do you understand that that might be the case?

AC: Yes, I do.

PJ: Well, then, you might take that into account - - -

AC: And does your Honour understand that I might be in the same position?

PJ: Please don’t talk over me, [AC].

AC: I’m not trying to talk over you, your Honour.

PJ: Well, if you understand that that’s the court’s position, then you might understand that the court is interested in getting to the point of your argument.

AC: And I am trying to take, methodically, your Honour through— it’s the best of my forensic ability.

PJ: Just let me finish— just let me finish so that we don’t spend an hour arguing about why you’re upset.

AC: Well, your Honour, it should be bleeding obvious why I’m upset. Let’s move forward, your Honour, please. And if— your Honour, if I’ve done anything to upset you, then I do apologise. This is not my intention at all. I simply want to further my client’s interest to the best of my ability.

PJ: You were taking me to section 473DC, which is about … migration.

24 The appellant relies upon the whole of the transcript of the hearing before the primary judge as being relevant to the appellant’s allegation of apprehended bias.

Ground one – Apprehended Bias

25 It is well established that a judicial decision will be affected by apprehended bias if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at 6.  This is often referred to as the “double might” test: Sunshine Loans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [171], 173.

26 The justification for this principle is the importance of the appearance of independence and impartiality to the integrity of the judicial system: Ebner at 7.  For that reason, the question whether a decision is affected by apprehended bias “is one of possibility (real and not remote), not probability”: Ebner at [7].

27 The High Court stated in Director of Public Prosecutions (Vic) v Smith (2024) 98 ALJR 1163; [2024] HCA 32 at 92 that the application of the principle requires:

(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;

(2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

(3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

28 This was recently endorsed by the High Court in Sunshine Loans at 1.

29 While the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law”, the reasonableness of the asserted apprehension “is to be considered in the context of ordinary judicial practice”: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at 12, quoting Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at 13, and see also Sunshine Loans at 69.

30 It can be accepted that ordinary judicial practice includes the expression of “tentative views” in exchanges with counsel: Johnson at [13].  However, judicial comments “can exceed what is a proper and reasonable expression of tentative views”: Concrete at 112.  There is an important distinction between interventions that appear to be motivated by a “wish to understand” evidence or submissions and those that might be motivated by partiality: Concrete at 4, quoting Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at 103.

31 Charlesworth J said in Gindy v Capital Lawyers Pty Ltd (2022) 374 FLR 1; [2022] ACTCA 66 at 213:

In an appropriate case a tone of impatience or exasperation on the part of the trial judge may affect the range of meanings that might reasonably be conveyed by the uttered words. The trial judge, charged with the responsibility for the conduct of the trial, is entitled to express disapproval, impatience, even anger at the parties and their representatives for acts or omissions that unnecessarily prolong the proceedings. There will be cases in which the maintenance of a calm composure is neither necessary nor even appropriate, particularly in the face of repeated default or dereliction having a real impact on the judicial and administrative resources of the Court. It is not the case that a trial judge is forbidden from strongly rebuking a party or a party's representative in cases where strong rebuke is called for.

32 However, Charlesworth J went on to say at [214] that a judge’s loss of patience or “lack of decorum” may suggest “an associated loss of professional detachment with respect to the substantive issues to be decided”.

33 The appellant submits that the comments made by the primary judge to the Appellant’s Counsel, considered cumulatively and in the circumstances of the case, suggest a loss of professional detachment that might lead a fair-minded lay observer reasonably to apprehend that the primary judge might not have brought an impartial mind to the resolution of the application for judicial review.

34 The appellant submits that the initial exchange between the primary judge and the Appellant’s Counsel, where the primary judge said, “I do know your name”, would suggest to the fair-minded lay observer that the Appellant’s Counsel was already known to the primary judge.  In light of the exchanges that followed, the fair-minded lay observer might also reasonably have apprehended that the primary judge had formed a negative impression of the Appellant’s Counsel before the hearing began.

35 The appellant submits that the primary judge’s comment to the Appellant’s Counsel about the appearance slip, again considered in light of the exchanges that followed, might reasonably have been perceived by the fair-minded lay observer as an adverse comment on the competence of the Appellant’s Counsel, or an indication of a degree of personal antipathy on the part of the primary judge towards the Appellant’s Counsel.  This is said to be particularly significant given that it occurred right at the outset of the hearing.

36 The appellant submits that the impressions of the fair-minded lay observer identified above would have been reinforced by the abrupt way in which the primary judge dealt with the Appellant’s Counsel not long after he had commenced making submissions about his application to rely on the amended application for judicial review.  In this exchange, the primary judge said, among other things:

(1) “Mr [AC], can you just get to the point”;

(2) “I’m not going to let you be exhaustive … So just get to it. Get to the point”;

(3) “Your job is to assist the court to arrive at a decision… It’s not to say whatever you like”; and

(4) “Mr— just answer my question.”

37 The appellant submits that it can be inferred from the reactions of the Appellant’s Counsel to these remarks that the remarks were delivered harshly and in a manner that was sufficiently abrupt to upset the Appellant’s Counsel.  Particularly given that the remarks were made so early in the course of the Appellant’s Counsel’s submissions, the fair-minded lay observer might again reasonably apprehend that the remarks were motivated not just by impatience, but by a degree of personal antipathy towards the Appellant’s Counsel.

38 The appellant submits that impression would have been strongly reinforced by the following exchange between the primary judge and the Appellant’s Counsel (emphasis added):

PJ: If I’ve made up my mind, Mr [AC], why would I be asking questions?

AC: Well, your Honour seems to— it’s the nature of the questions that are being asked.

PJ: Ones that you are unable to answer?

AC: Okay, your Honour. It’s at the point now where I don’t think that I can in any way assist your Honour further. Please, your Honour. You’ve got the written submissions there.

39 The appellant submits that it would also have been reinforced by the exchange that followed, which culminated with the primary judge’s remark (emphasis added): “Just let me finish – just let me finish so that we don’t spend an hour arguing about why you’re upset ”.

40 The appellant submits that these remarks were not necessary for the primary judge to “understand the competing arguments” made by counsel at the hearing: Gambaro at 26.  They also went beyond mere expressions of “irritation or impatience”: Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33 at 55.  The appellant submits the fair-minded lay observer might reasonably have understood the primary judge’s question “[o]nes you are unable to answer?” as sarcastic, mocking, and expressing a degree of contempt for the competency of the Appellant’s Counsel.  Similarly, the fair-minded lay observer might reasonably have understood the remark “just let me finish so that we don’t spend an hour arguing about why you’re upset” as mocking the Appellant’s Counsel’s reaction to the earlier remarks made by the primary judge.

41 The appellant submits that, having regard to the appearance of impartiality to the integrity of the judicial system, the question whether a decision is affected by apprehended bias “is one of possibility (real and not remote), not probability”: Ebner at [7].  Here, having regard to the way the hearing on 9 April 2018 unfolded, a fair-minded lay observer might reasonably have apprehended that the primary judge harboured a sufficient degree of antipathy to the Appellant’s Counsel that he might not have brought an impartial mind to the resolution of the appellant’s application for judicial review.  That is said to be sufficient for the appeal to be allowed and the Primary Judgment set aside, without any examination of the merits of the primary judge’s decision.

42 The Minister submits that robust, even intemperate exchanges between bench and bar do not alone evidence an apprehension of bias.  Judges are entitled to intervene to ensure that they understand the arguments, the issues and the evidence: Bul l more v Minister for Immigration, Citizenship, Migrant Services and Multicul tural Affairs (2024) 304 FCR 370; [2024] FCAFC 99 at 36.  A finding of apprehended bias is not to be reached lightly: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at 56.

43 The Minister submits that at their highest, the portions of the transcript relied upon by the appellant and referred to above, betrayed limited irritation or frustration by the primary judge.  That is not enough to make out a claim for apprehended bias as the authorities make plain.

44 Counsel for the Minister also emphasised in oral submissions, that it is only at the third stage of the steps identified in ] of these reasons, that the views of the fair-minded lay observer becomes relevant.  The anterior two steps cannot be met by mere assertion; as Gageler CJ and Gleeson J said at [42] in Sunshine Loans (see also the examples given by their Honours at [43]-[47], and see also Beech-Jones J at [174]-[175]):

Articulating the logical connection between the identified source of bias and the feared deviation from the course of deciding the case on its merits requires that the party fearing bias identify an objectively credible reason why the judge might lack the requisite impartiality to decide the case. In Ebner v Official Trustee in Bankruptcy, examples given of assertions generally insufficient to articulate such a connection were that the judge has a mortgage with a bank that is a party to litigation or that the judge knows a party’s lawyer. A logical connection was accepted to exist, by contrast, in the realistic possibility that the outcome of the litigation would affect the value of the judge’s assets.

45 Counsel for the Minister submitted that ground one fails at the second stage of the inquiry as there has been no articulation of the logical connection between the particular statements made by the primary judge and the apprehended deviation from deciding the case according to its merits.  Counsel for the Minister submitted that, contrary to the appellant’s submissions, the transcript does not evince a reasonable apprehension of antipathy on the part of the primary judge towards the Appellant’s Counsel.

Consideration

46 I do not consider the comments made by the primary judge to the Appellant’s Counsel, considered cumulatively and in the circumstances of this case, suggest a loss of professional detachment by the primary judge that might lead a fair-minded lay observer reasonably to apprehend that the primary judge might not have brought an impartial mind to the resolution of the application for judicial review.

47 The portions of the transcript relied upon by the appellant do not indicate that the primary judge had a closed mind not open to further persuasion.  Rather, the primary judge sought to direct the Appellant’s Counsel to focus his mind on the real issues at the outset: [T6.11-12].  The response of the Appellant’s Counsel was to accuse the primary judge of “treat[ing] [him] rudely”: [T6.15-16].  There was no basis for that accusation.  Despite that accusation, the response of the primary judge was to state that he asks [AC] to [move on] and eschewed any suggestion that he “treat[ed] [AC] rudely”: [T6.18-19].  The primary judge reminded the Appellant’s Counsel that his “job [was] to assist the Court to arrive at its decision” and “not to say whatever [he] like[d]”: [T6.23-24.28].  The Appellant’s Counsel then made a further accusation of mistreatment at [T6.36-38]:

Okay, your Honour. If – perhaps, then, your Honour, if it’s going to go like this, then perhaps I should rely on the written submissions. Okay. Because, your Honour, I’m not used to – I’m not going to put up with - - -

(emphasis added)

48 Despite that accusation, the response of the primary judge was measured: “[y]ou have the opportunity to say what you like that’s relevant to the ground”: [T6.33-34].  When the Appellant’s Counsel responded, the primary judge directed his attention to a judgment of the Full Court of this Court – Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 – which was directly on point, and, unless it could be distinguished, foreclosed his new ground of review: [T6.43]-[T7.5].  When the primary judge asked the Appellant’s Counsel whether BBS16 “cut against what [he was] saying?”, the reaction of the Appellant’s Counsel was to accuse the primary judge of pre-judgment; to raise his voice at his Honour; to direct his Honour to the written submissions that had been filed; and then to sit down without answering the question: [T7.9].  I refer to the extract of the transcript at paragraph ] of these reasons, which demonstrates that, despite such conduct, the response of the primary judge was, once again, measured, albeit matter of fact: [T7.11]-[T9.4].

49 After the Appellant’s Counsel apologised, he proceeded to make submissions on the new ground of review.  On multiple occasions, the primary judge had to direct the Appellant’s Counsel to answer his questions: [T10.16-24], [T15.18-46].  Significantly, the Appellant’s Counsel did not address the critical question in the proceeding: why BBS16 did not foreclose the new ground: [T14.21-35], [T16.31-15].

50 The appellant has failed to identify on the transcript the factor which it is said might have led the primary judge to resolve the question other than on its legal and factual merits.  The appellant has failed to articulate the logical connection between any such factor and the apprehended deviation from deciding the question on its legal and factual merits: Sunshine Loans at [1] and 42.

51 When the transcript of the hearing before the primary judge is read as a whole, it is readily apparent that the appellant received a fair hearing and was provided with ample opportunity to make submissions.  Those submissions were considered by the primary judge, though ultimately not accepted.

52 The comments of the primary judge, “I do know your name”, “can you just get to the point” and “just answer my question” are a reflection of what Kirby ACJ (as his Honour then was) described in Galea v Galea (1990) 19 NSWLR 263 at 282 as “… the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay…”.  The interactions relied on by the appellant do not rise to the level of apprehended bias; rather, they reflect the robust exchanges that occur between bench and bar.  There is nothing remarkable about the comments of the primary judge.

53 Further, when regard is had to the fact that the Appellant’s Counsel was able to address the primary judge at length, together with his Honour’s repeated attempts to engage with the Appellant’s Counsel on the critical issue (the application of BBS16), the fair-minded lay observer would not apprehend that the judge might not decide the case dispassionately.  For the reasons given, ground one must be rejected.

54 The Minister also advanced a submission that the appellant, through the Appellant’s Counsel, waived his right to bring an application for apprehended bias.  As I have found that the appellant has not established the ground of apprehended bias, there is no need for me to consider if there was such a waiver.

Ground two – alleged failure to consider paragraphs [3.40] and [3.41] of the February 2015 Report

55 Ground two alleges that the primary judge should have held that  the Authority’s Decision was affected by jurisdictional error as it failed to consider important evidence in its review.  Particular (c) makes apparent that the “important evidence” consisted of [3.40] and [3.41] of the February 2015 Report.

56 To make good this ground, the appellant argues that the references to the February 2015 Report in the footnotes to [18] and [19] of the Authority’s Decision were typographical errors.  It is said that the Authority in fact referred to the December 2015 Report.

57 So far as [19] of the Authority’s Decision is concerned, the reference to the February 2015 Report in footnotes 4 and 5 do appear to be typographical errors.  It is apparent that the pinpoint citation in footnote 4 matches the December 2015 Report, and although footnote 5 does not contain a pinpoint citation it is not in dispute that parliamentary elections took place in Sri Lanka on 17 August 2015.

58 The position with respect to [18] is less clear.  In this paragraph, the Authority cites [2.35] of the February 2015 Report as support for the proposition that “[i]n its most recent report, published in December 2015, DFAT reports that TMVP continue to be active in Sri Lanka, however have reportedly renounced paramilitary activities, DFAT is aware of reports that they continue to be active in Sri Lanka, including in criminal activity, although these reports, while credible, are difficult to verify”.

59 This is consistent with what the February 2015 Report says at [2.35]:

Some Tamil militant groups, such as the Eelam People's Democratic Party (EPDP) and Tamil Makkal Viduthalai Pulikal (TMVP), switched their allegiance to the then Government during the conflict and played a key role supporting it in the north and east. While these groups have reportedly renounced paramilitary activities, DFAT is aware of reports that they continue to be active in Sri Lanka, including in criminal activity. While credible, these reports are difficult to verify.

60 However, [2.35] of the December 2015 Report is in relevantly identical terms.

61 In these circumstances, it is not readily apparent that the Authority failed to consider the February 2015 Report.  It can equally be said that the typographical error lay in the body of the paragraph with the reference to the December 2015 Report. It is apparent the Authority extensively considered the February 2015 Report in its statement of reasons.

Consideration

62 The appellant requires leave to raise ground two.  It has been held that leave to raise a new ground of appeal should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at 46.  The Court in VUAX said – noting that the seeking of leave to raise new grounds of appeal is prevalent in migration matters – that leave should only be granted if the proposed ground “clearly has merit” and “there is no real prejudice to the respondent in permitting it to be agitated”: at [48].  However, where “there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused”: at [48].

63 First, no satisfactory explanation has been given as to why ground of appeal two was not raised below before the primary judge.  Plainly the appellant was represented before the primary judge.  There was no reason advanced why ground of appeal two was not raised in the proceeding below and no explanation has been given as to why that was not done.  It would be an exceptional case where leave is granted to raise a new argument which could have been, but was not, put at first instance: ATD18 v Minister for Home Affairs [2020] FCA 593, (Charlesworth J) at [26] citing M etwally v University of Wollongong (1985) 60 ALJR 68; [1985] HCA 28 at 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).  This is not an exceptional case and leave to raise it for the first time on appeal should be refused on that basis alone.

64 Second, the appellant submitted there is no specific prejudice to the Minister because the ground is a simple one which depends on reading both the Authority’s Decision and the DFAT country information report.  The Minister submitted that to permit the appellant to raise this ground of appeal now would be tantamount to the Court deciding the judicial review application afresh.  The Minister submitted that if the Court were to allow the ground to be raised and upheld the ground, the Minister would then be denied a right of appeal (as of right), which he would have had if the ground had been raised before the primary judge.  As Perram J explained in AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; [2015] FCA 804 at [14]:

[T]his court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial … in circumstances where none of the issues to be decided in this court were ever decided in the court below. Section 476A of the Act explicitly removes this court’s original jurisdiction in cases of this kind. Of course, the ability of this court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this court followed by a more cursory review by the High Court. If this court, in substance, determines a case at first instance by entertaining fresh grounds … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this court then the appellant is denied a layer of appellate scrutiny.

65 The Full Court in BZD17 v Minister f or Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 at 30 referred to the above considerations with approval.  By way of reply, Mr Hosking submitted for the appellant that if leave to raise ground two is refused it would leave the appellant in the remarkable situation of having had two hearings without a substantial determination of any ground of review in relation to the Authority’s Decision.  In the circumstances, I find the appellant should only be permitted to raise ground two if it has sufficient merit.

66 I am satisfied that ground two lacks sufficient merit to warrant a grant of leave to raise it for the first time on appeal for the reasons below.

67 Under s 473DB(1) of the Act (as then in force, noting Pt 7AA of the Act has now been repealed), the Authority was required to consider the review material, which included country information.  If, contrary to the appellant’s submissions, the typographical error lay in the reference to the December 2015 Report, or if the Authority had regard to the February 2015 Report elsewhere in its reasons, the Authority had regard to the country information and discharged its statutory function.  In these circumstances, to complain, as ground of appeal two does, that the Authority did not expressly refer to two paragraphs cited in the particulars is to read the reasons with an eye “keenly attuned for error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

68 Furthermore, taking the appellant’s argument at its highest, that is that the Authority’s Decision does not refer to the February 2015 Report, I am not satisfied that establishes jurisdictional error for the following reasons.

69 The Authority’s Decision, at [2], expressly notes that the Authority has had regard to the material referred by the Secretary under s 473CB of the Act.  In DHW17 v Minister for Home Affairs [2019] FCA 985, Mortimer J (as her Honour then was) explained the Authority’s duty to consider review material as follows:

[18(c)]  The terms of s 473DB(1) require the Authority to consider the “review material” provided to it under s 473CB by the Secretary. By ss 473CB(1)(b) and (c) that will include country information either provided to the delegate by a visa applicant (s 473CB(1)(b)) or country information on which the delegate relied (s 473CB(1)(c)). In relation to s 473CB(1)(c), plainly any material to which the delegate referred in her or his decision is likely to be (at the time at which the s 473CB obligation is to be performed) material which is relevant to the Authority’s review. How the material is “given” is a different matter, and it may be that in relation to country information there are a number of ways in which the applicable country information before the delegate can be “given” to the Authority.

…

In performing a review function of this kind, the usual principle is that the decision-maker should consider current information or material most likely to give the decision-maker an indication of what the situation is likely to be in the country to which a visa applicant may be forced to return … Consideration of up-to-date material is a core aspect of the review function where the task is to determine whether a person has a well-founded fear of persecution on return (in the foreseeable future) to a country, or faces a real risk of significant harm (in the foreseeable future) in that country. The task is predictive, and while each case will turn on its facts, in general terms it can be said that a decision-maker should, in order to perform her or his task, base that prediction on the most recent and reasonably available information about the situation in a particular country.

…

[23]  In undertaking that task, and noting what I have observed in [18(a)] above, an obligation to “consider” review material does not necessarily involve the Authority referring in its reasons “to every piece of evidence and every contention made by an applicant”…

[24]  At [3] of its reasons the Authority stated that it had regard to the material referred by the Secretary under s 473CB. While a general statement such as this is not determinative, it is also not to be set at nought. For a supervising court to find, against such a statement, that certain materials which should have been considered have not been requires a sufficient probative basis in the remainder of the reasons, and in other evidence before the supervising court.

[26]  … the appellant’s submissions did not point to any particular issue relevant to the appellant’s claims or circumstances which was raised by the country information and which he contended had not been considered.

[27]  This is a situation where, in my opinion, there is no probative basis on which to doubt the Authority’s statement at [3] of its reasons. The extent to which it was necessary for the Authority to specifically address broader country information in its reasons is always dependent on its findings of fact. In this case, in a detailed and careful way, the Authority had made factual findings about why the appellant’s past activities would not bring him to the attention of the Sri Lankan authorities, and why he would not face any challenges on retuning [sic] to Sri Lanka which were not challenges shared with other Tamil asylum seekers. It was on that basis the Authority came to consider the country information and there is no error, let alone a jurisdictional one, in its focus on the most recent DFAT report. Indeed, the fact it sought out and relied on the most recent report demonstrates a proper approach to its review function, for the reasons set out in [Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114; 230 FCR 431].

70 The February 2015 Report detailed instances of violence between 2011-2013 under the previous government (the Rajapaksa government), in particular in the section headed “Attacks or restrictions on Government opponents, critics and civil society activists” which includes [3.38]-[3.43].  A new president was elected in January 2015.  The February 2015 Report includes very little reference or consideration of instances of violence under the new government – the Sirisena government.  The key passages on which the appellant relies on are [3.40]-[3.41], which are as follows:

Parties engaging in political activities in the north, particularly the TNA, were subject to harassment and monitoring under the previous government. For example, the Commonwealth Observer Mission reported a number of incidents of election violence against TNA candidates prior to the provincial council elections in September 2013, including an attack on the house of candidate Ananthi Sasitharan which injured eight people.

Violent confrontations between members of the same party or their coalition allies have also been reported. For example, five people were reportedly shot and wounded at a rally between supporters and opponents of then opposition leader Ranil Wickremesinghe (now Prime Minister) in Matara in the Southern Province on [sic] October 2013. In a separate incident in 2011, then Government Member of Parliament Duminda Silva was involved in a shoot-out with then Presidential Advisor Bharatha Lakshman Premachandra which resulted in the latter's death.

71 In comparison, the December 2015 Report had no discussion or report of Tamil National Alliance (TNA) supporters being at risk of harm.  It is evident from the December 2015 Report that the political landscape had changed.  It is relevant in this regard to note that the parliamentary election was held on 17 August 2015.  The equivalent section to the above extracts ([3.40]-[3.42]) in the December 2015 Report is [3.77] – being the section that appears under the heading “Attacks or restrictions on Government opponents, critics and civil society activists”.  It reads as follows:

Article 14(1) of Sri Lanka's Constitution guarantees freedom of speech and expression, freedom of peaceful assembly and freedom of association. DFAT assesses that while tolerance for political dissent in Sri Lanka can be limited, it is increasingly accepted. Under the previous Rajapaksa government, active Government critics were often described as 'LTTE or terrorist sympathisers' and risked attracting adverse attention by Government authorities. This included monitoring, harassment, arrest and detention. The Sirisena government has publicly committed to ending the surveillance of NGO workers and journalists and allowing freedom of speech. Activists and journalists have reported to DFAT that surveillance has reduced since January 2015, particularly in Colombo.

72 If the Authority did refer to the December 2015 Report instead of the February 2015 Report at [18] and/or [19] of its statement of reasons, that does not give rise to any error of law, let alone a jurisdictional error.  The Authority is expected to refer to the most up-to-date material on the situation in the country in question.  It was open to the Authority at [19] of the Authority’s Decision to refer to the December 2015 Report and to conclude from this information that there was not a real chance the appellant would face harm on return to Sri Lanka.  The Authority’s Decision at [19] evinces an appreciation of the change in the political landscape following the elections and came to the view that the information did not support a finding that “TNA supporters continue to face any harm from the Karuna/TMVP group or any other non-state agents.”

73 While the appellant contends that the Authority’s Decision does not disclose a process of weighing the evidence and preferring the December 2015 Report to the February 2015 Report, that is not the case: it is apparent from [18] of the reasons that the Authority preferred the December 2015 Report as it was the most recent.  In any event, the Authority is not under a duty to explain why it has attributed less or greater weight to an item of country information than to another item.

74 For these reasons, ground two lacks sufficient merit to warrant a grant of leave to raise it for the first time on appeal.

Disposition

75 For the reasons given, ground one is rejected and leave to raise ground two is refused.  The appeal is dismissed.  The appellant must pay the Minister’s costs of the appeal as agreed or as assessed by a Registrar of the Court.

| I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. |
Associate:

Dated: 20 April 2026