The Federal Court of Australia ruled that a decision of a senior member of the (now abolished) Administrative Appeals Tribunal (AAT) was affected by apprehended bias, given her “hostile” remarks against the tribunal applicant’s lawyers in her written reasons, among other things, writes Sergio Zanotti Stagliorio.
Summary
A delegate of the Minister for Immigration cancelled Mr Alovale Leo’o Olo’s visa under s 501(2) of the Migration Act 1958 (Cth), following a finding that he did not pass the “character test”.
Subsequently, Leo’o Olo sought merits review with the AAT, now replaced by the Administrative Review Tribunal.
The tribunal, constituted by a senior member, conducted a three-day hearing and then purported to affirm the delegate’s decision.
Leo’o Olo then sought judicial review of the tribunal’s decision in the Federal Court.
On 22 January 2026, the Federal Court set aside the tribunal’s decision in Leo’o Olo v Minister for Immigration and Multicultural Affairs [2026] FCA 10 (Justice Darryl Rangiah), as discussed below.
Tribunal hearing
At [71] of His Honour’s judgment, Rangiah J said:
“In respect of a number of witnesses, just after the witness had taken an oath or affirmation to tell the truth, the senior member said, ‘I just want to give you a warning here that it is an offence to knowingly give false evidence to the tribunal’, or words to that effect …”
Tribunal’s reasons
The senior member’s reasons for her decision commenced as follows:
“1. A non-citizen who commits serious offences in Australia should expect to be removed. Mr Leo’o Olo is a non-citizen who inflicted grievous bodily harm on a stranger, hit his young son so hard it caused welts and bruising, and threw his ex-partner down with such force that she bounced into a wall. He should not expect to remain in Australia.
“2. However, there is money to be made from non-citizens who are desperate to avoid deportation, and whose loved ones are prepared to contribute their savings to pay a lawyer or migration agent to take their case to the tribunal. There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money. Where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case that focusses on matters that favour the non-citizen and carefully deals with matters that do not. Witnesses should be proofed properly to elicit relevant information and drive home their duty to be truthful. Poor proofing leads to contrived or deficient evidence and creates a risk that information that favours the non-citizen will remain unknown unless a curious tribunal uncovers it.
“3. Mr Leo’o Olo did not benefit from the efforts of his lawyers and lay witnesses to manipulate the tribunal. The tribunal is concerned with credible evidence and reasonable inferences. It is not persuaded by lies, speculation or exaggeration. Mr Leo’o Olo is going back to his country of origin. It is not a country that is poor, unstable, war torn, barbaric or oppressive. It is New Zealand.
“4. I am required to explain how I reached my decision. This is an expedited matter, and one of the tribunal’s statutory objectives it [sic] to deal with matters efficiently. I will not waste time and tribunal resources, which are public resources, addressing each and every disingenuous utterance made on the applicant’s behalf. If that results in an appeal, it would create an opportunity for the Federal Court to provide clarity in this jurisdiction about the extent to which the tribunal is required to engage with material that is obviously lacking in merit, particularly in circumstances where the sheer volume could raise a suspicion that there was an intention to create appeal points.”
Leo’o Olo’s arguments to the Federal Court
Leo’o Olo pleaded multiple grounds of review, one of which was that the tribunal’s decision was vitiated with jurisdictional error in the form of apprehended bias, which was the only ground decided by the court.
Justice Rangiah summarised Leo’o Olo’s case of apprehended bias at [13] as based on the following alleged conduct of the senior member:
“(1) using a dismissive and aggressive tone of voice and body language towards the applicant and the applicant’s witnesses;
“(2) engaging in extensive questioning that went beyond robust and forthright testing of evidence and amounted to cross-examination;
“(3) engaging in insensitive, rude and improper cross-examination;
“(4) indicating that she would not even accept the credibility of the evidence provided by witnesses who were not required for cross-examination by the minister’s legal representatives;
“(5) making serious adverse findings concerning the conduct of the applicant’s lawyers;
(6) indicating that commencing the proceeding was futile; and
(7) making findings of fact that were illogical, unreasonable, unsupported by the evidence or insensitive.”
Summary of the court’s findings
In summary, Rangiah J accepted most of the allegations extracted above, finding at [75] that the factors giving rise to apprehended bias were that the senior member:
“(1) expressed hostility towards the applicant’s lawyers over their preparation and presentation of the applicant’s case;
“(2) made a comment suggesting that the tribunal had assessed the applicant’s case as futile even before hearing the evidence and submissions;
“(3) effectively took on the role of a contradictor by engaging in extensive and often hostile cross-examination of witnesses; and
“(4) warned a number of witnesses that it was an offence to knowingly give false evidence to the tribunal, suggesting that the tribunal had a predetermined expectation that they would give false evidence.”
Each of those four factors is discussed below, using the same numbering of (1) to (4).
(1) Hostility towards Leo’o Olo’s lawyers
In short, His Honour said at [55] that “the tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified”, and that a “fair-minded observer would reasonably regard the tribunal as having launched an unjustified attack on the applicant’s lawyers”.
At [58], His Honour said:
“The tribunal’s hostile tirade against the applicant’s lawyers was of the gravest kind, attacking their honesty and integrity as lawyers. The tribunal plainly took the view that the witnesses were not ‘proofed properly’ by the lawyers with the consequence that there was ‘contrived or deficient evidence’. The tribunal indicated that the lawyers did not ‘present an honest case’. In my opinion, a fair-minded reader of the tribunal’s reasons might reasonably apprehend that the tribunal visited its animosity towards the applicant’s lawyers over their preparation and presentation of the case upon the applicant. In other words, a fair-minded reader might reasonably apprehend that the tribunal may well have failed to bring an open mind to the evidence of the applicant and his witnesses and the merits of his lawyers’ submissions.”
(2) Tribunal assessed case as futile even before hearing
His Honour said at [59]:
“The tribunal also commented that, ‘There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money.’ This comment demonstrates the tribunal’s opinion that the applicant’s lawyers ought to have assessed the case as futile, or doomed to failure from the outset, before they proceeded to charge the applicant fees for preparing and filing his material. The comment indicates that the tribunal had itself assessed the case as futile, and suggests that the tribunal had been able to make that assessment on the basis of the material that was filed by the lawyers (just as the lawyers ought to have done). In my opinion, the tribunal’s comment suggests that the tribunal had assessed the applicant’s case as being doomed to failure after reading the material and before hearing any oral evidence and submissions. It is apparent from the transcript that the senior member had read the witness statements prior to the hearing.”
(3) Tribunal effectively took the role of contradictor
Justice Rangiah said at [70]:
“I accept that the senior member’s extensive and often hostile questioning of the witnesses might cause a fair-minded observer to perceive that she had effectively taken on the role of a contradictor. I also consider that a fair-minded observer might regard the tribunal’s cross-examination as designed to vindicate the tribunal’s predetermined view that the lawyers had not ‘presented an honest case’ and that the statements were ‘contrived or deficient’.”
(4) Tribunal had predetermined expectation that witnesses would give false evidence
His Honour said the following at [71] regarding the tribunal’s warning to some witnesses that it is an offence to knowingly give false evidence to the tribunal:
“… I accept that a perception might arise that, notwithstanding the witnesses having taken an oath or affirmation, the tribunal had a predetermined expectation that they would give false evidence that made it necessary to give the additional warning. While this factor might not be critical on its own, when taken together with the nature of the cross-examinations that ensued, it adds weight to the proposition that a fair-minded observer might reasonably apprehend that the senior member had closed her mind to persuasion.”
Outcome
As a result of the above findings, Rangiah J:
Sergio Zanotti Stagliorio is a barrister and lecturer.
