RE AKW22; EX PARTE AKW22 [2026] WASC 251

[2026] WASC 251 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE AKW22; EX PARTE AKW22 [2026] WASC 251 CORAM : BYDDER J HEARD : 22 APRIL 2026 & 22 MAY 2026 DELIVERED : 23 JUNE 2026 FILE NO/S : CIV 1303 of 2026 MATTER : IN THE MATTER OF AKW22 EX PARTE AKW22 Applicant Catchwords: Courts and judges - Application for recusal - Reasonable apprehension of bias by way of prejudgment - Where research conducted into the state of the law - Where authorities identified by that research were raised with counsel - Turns on own facts Courts and judges - Invitation to decline to hear matter - Invitation not accepted Legislation: Habeas Corpus Act 1640 (Imp) Migration Act 1958 (Cth) Rules of the Supreme Court 1971 (WA) -- 1 of 37 -- [2026] WASC 251 Page 2 Result: Application dismissed Category: B Representation: Counsel: Applicant : Mr J Cameron Solicitors: Applicant : John Cameron Cases referred to in decision: AKW22 v Commonwealth of Australia (No 2) [2023] FCA 955 AKW22 v Commonwealth of Australia [2023] FCAFC 71; (2023) 297 FCR 650 AKW22 v Commonwealth of Australia [2024] FCAFC 22 Armet v Stephen Browne [2024] WASCA 44 Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811 Dien v Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 GSA v Department of Communities [No 2] [2026] WASCA 36 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 McHugh v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 Pauga v Chief Executive of Queensland Corrective Services [2023] FCAFC 58; (2023) 238 FCR 96 Reynolds v Rayney [2023] WASCA 144 SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 -- 2 of 37 -- [2026] WASC 251 BYDDER J Page 3 BYDDER J: Introduction 1 On 9 March 2026, the applicant filed an originating motion ex parte. 2 The motion was described in its heading as an 'Originating Motion Pursuant To O.57'. Order 57 of the Rules of the Supreme Court 1971 (WA) (Rules) is concerned with applications for writs of habeas corpus ad subjiciendum (habeas corpus). 3 The operative part of the motion read as follows: The Plaintiff is constructively detained in India having been detained and removed from Australia without judicial warrant and while his application for habeas corpus was pending in the Federal Court of Australia. 4 The grounds of the application were stated in the motion to be: The detention and removal of the Plaintiff without judicial warrant is and was prima facie unlawful. 5 The application was supported by an affidavit sworn by the applicant on 25 February 2026 (Exhibit 2) and an affidavit sworn by his son on 10 September 2025 (Exhibit 1). Both affidavits were filed on 27 March 2026. 6 The content of each affidavit is materially identical and it is convenient to set out the relevant paragraphs of the applicant's affidavit: 2. On 14 August 2023 persons acting on behalf of the respondent removed me without my consent from Australia to Chennai, India. 3. At the time of my removal, I was detained without judicial warrant in the Villawood Immigration Detention Centre, having been transferred from the Perth Immigration Detention Centre by charter aircraft on 10 August 2023. 4. Prior to my removal my legal representatives had on my behalf on 7 July 2023 and 12 August 2023 filed in the Federal Court of Australia applications for writs of habeas corpus or like orders requiring that I be produced before that Court in Perth. 5. Neither application had been heard and determined at the time of my removal. -- 3 of 37 -- [2026] WASC 251 BYDDER J Page 4 7 The application was also supported by what was described as a Memorandum of Counsel filed on 27 March 2026. 8 At the first hearing of the application before me on 30 March 2026 (March hearing), counsel for the applicant confirmed that he intended the Memorandum of Counsel to be his written submissions in support of the applicant's application for a writ of habeas corpus.1 9 In this document, counsel for the applicant made submissions on several matters, including at paragraphs 5 to 9 on the two stages in the hearing of an application for a writ of habeas corpus, the evidential burden which the applicant has to discharge in order for his application to be granted and what follows if the applicant discharges that evidential burden: The hearing 5. A two stage procedure. In Western Australia there are two stages in the hearing of an application: Supreme Court Rules (WA) Order 57: Dien at 418. 5.1. The ex parte hearing. At this stage there is an evidential onus on the detainee to establish a prima facie case of illegality. 5.2. The writ issues. If the writ issues the onus shifts. 5.3 On the return. On the return of the writ of [sic] the legal onus is on the detaining authority to prove the legality of the detention: Khawaja v Secretary of State for the Home Office [1984] AC 74 at 110-112 per Lord Scarman. The issues Evidence 6. The onus on the applicant. At the ex parte hearing the applicant bears an evidential onus to satisfy the Court that: 6.1. he or she is detained; and 6.2. by the defendant; and 6.3. without judicial warrant. 1 ts 3. -- 4 of 37 -- [2026] WASC 251 BYDDER J Page 5 7. The evidential burden. At the ex parte stage the person detained bears an evidential burden in relation to the lawfulness of the detention: McHugh at [92] per Besanko J; Dien at 418. 8. The burden discharged. The evidential burden is discharged where the detainee satisfies the Court that the detention is by the Executive unsupported by judicial warrant. Save for that ordered by a judge, every imprisonment is prima facie unlawful, and must be justified by the person directing it: McHugh at [54] per Allsop CJ; Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 152. Detained? 9. The amenability issue. Upon meeting the evidential burden the plaintiff is entitled to the writ: Dien at 418 - 419 per Malcolm CJ. The writ will issue to determine whether statutory conditions that regulate or define the power to detain a person have been complied with: R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222. 10 At paragraphs 12 to 16 of his Memorandum, counsel for the applicant also relied on the affidavit of the applicant's son to make a number of assertions of fact:2 12. Detention in Western Australia. On the evidence the detainee was initially detained in the Perth Immigration Detention Centre in Western Australia and within the jurisdiction of this Court: Affidavit of [the applicant's son] at [5] 13. Removal to New South Wales. He was then moved in close custody by air to the Villawood Immigration Detention Centre in Sydney, New South Wales preparatory for his removal from Australia: Affidavit of [the applicant's son] at [5]. 14. Removal to Chennai. Within days he was again in close custody removed from Australia by agents of the Minister, accompanied by a medical practitioner, to Chennai in India: Affidavit of [the applicant's son] at [4]. 15. Habeas corpus in the Federal Court. When removed neither of his outstanding applications for habeas corpus in the Federal Court of Australia had been heard and determined: Affidavit of [the applicant's son] at [6] and [7]. They remain open on the Court's electronic record. 2 As I have noted, the applicant's son's affidavit is materially identical to the applicant's affidavit. The relevant paragraphs of the applicant's son's affidavit begin at paragraph 4, so that (for example) a reference to the applicant's son's affidavit at [5] corresponds to the materially identical paragraph of the applicant's affidavit at [3]. -- 5 of 37 -- [2026] WASC 251 BYDDER J Page 6 16. Release from close custody. The detainee was released from the close custody of the Minister's agents upon arrival at the Chennai International Airport, and has since been at large. 11 Following the March hearing, the applicant filed a motion for recusal on 20 April 2026. The motion was supported by submissions and an affidavit filed on 17 April 2026. 12 The motion for recusal came on before me for hearing on 22 April 2026 (April hearing). After hearing counsel for the applicant, the matter was adjourned for the applicant's counsel to obtain further instructions. 13 On 1 May 2026, the applicant's counsel filed further submissions in support of the motion for recusal. Those submissions seek to support the motion for recusal by reference to what occurred at the April hearing. 14 On 22 May 2026, the motion for recusal came on before me again for hearing (the May hearing). At that hearing, counsel for the applicant made oral submissions in support of the motion for recusal and also invited me to decline to hear the matter, even if I am satisfied that there is no reasonable apprehension of bias.3 15 For the reasons which follow, the motion for recusal must be dismissed and counsel's invitation to decline to hear the matter should not be accepted. Preparation in my chambers for the March hearing 16 In the course of preparation for the March hearing, research was undertaken in my chambers into the current state of the law of habeas corpus. 17 That research identified several cases relating to a litigant in the Federal Court referred to as AKW22. They included two cases which I raised with counsel at the March hearing. 18 The first of those cases was AKW22 v Commonwealth of Australia,4 decided by the Full Court of the Federal Court on 17 May 2023 (the Full Court Case). The Full Court Case dealt with an appeal from the refusal by a single judge of the Federal Court of AKW22's 3 ts 57. 4 AKW22 v Commonwealth of Australia [2023] FCAFC 71; (2023) 297 FCR 650 (Full Court Case). -- 6 of 37 -- [2026] WASC 251 BYDDER J Page 7 application for habeas corpus, in a context where AKW22 was in immigration detention. 19 The sole ground of appeal in the Full Court Case was that the primary judge had erred in holding that AKW22 had not met an evidentiary requirement that was a condition precedent to the respondent being called upon to justify his detention.5 20 In dismissing the appeal, the Full Court of the Federal Court said:6 This matter involves executive detention pursuant to s 189(1) of the [Migration Act 1958 (Cth)]. The lawfulness of a person's detention under s 189(1) depends on whether an officer holds reasonable suspicion or knowledge that the detained person is an unlawful non- citizen. Thus, an applicant for a writ of habeas corpus seeking to challenge the lawfulness of his or her current detention under s 189(1) must show some basis on which a court could conclude that he or she is not an unlawful non-citizen or the detaining officer did not reasonably suspect that he or she is an unlawful non-citizen. That evidentiary burden relates to the circumstances of the exercise of the statutory power to detain and its nature. Once an applicant's evidence puts one or more of those questions in issue, the onus shifts to the respondent to establish the current detention is lawful. 21 The applicant and his son deposed that the applicant was in immigration detention before his removal from Australia. As such, the Full Court Case would appear to be plainly relevant to the evidentiary burden which the applicant had to discharge as a matter of law in his application to this court for a writ of habeas corpus. Counsel for the applicant accepted before me at the March hearing7 that the applicant was detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act). 22 The Full Court added at [36] that: It may be observed immediately that before the primary judge the appellant failed to discharge his evidentiary onus. The primary judge found as much in his reasons at [11], to which we have referred to above, and against which there is no challenge on appeal. 23 That is, AKW22 had failed before the Federal Court on the question of whether he had discharged his evidentiary onus for habeas corpus. 5 The Full Court Case [3] (Rares, O'Sullivan and Feutrill JJ). 6 The Full Court Case [34] (Rares, O'Sullivan and Feutrill JJ). 7 ts 6. -- 7 of 37 -- [2026] WASC 251 BYDDER J Page 8 24 The unreported judgment of the Full Court Case records that counsel for AKW22 had the same name as the person appearing before me as counsel for the applicant and that AKW22 is an Indian national.8 25 The second of the cases, AKW22 v Commonwealth of Australia (No 2)9 (the Single Judge Decision), was a decision of Banks-Smith J made on 13 August 2023 in which her Honour delivered written reasons the next day. Banks-Smith J said at the beginning of her Honour's reasons:10 Yesterday (Sunday, 13 August 2013)11 an application for interlocutory orders for a writ of habeas corpus and injunctive relief was filed. The urgency arose from the planned deportation of the applicant at 10.00 am AEST today. I heard the application in the evening and determined that it was to be dismissed. Having regard to the urgency, I made orders at the end of the hearing and gave brief reasons for doing so, and indicated that I would publish reasons today. 26 Banks-Smith J's orders made on 13 August 2023 were as follows. 1. The applicant's application for interlocutory relief accepted for filing on 13 August 2023 is dismissed. 2. The applicant must pay the respondent's costs of the application to be assessed if not agreed. 27 The unreported judgment of the Single Judge Decision records that AKW22 is a citizen of India12 and that counsel for AKW22 had the same name as the person appearing before me as counsel for the applicant. 28 Neither the Full Court Case nor the Single Judge Decision referred to the applicant by name. Further, there was nothing in Exhibits 1 and 2 or the Memorandum of Counsel which referred to the Full Court Case, the Single Judge Decision or AKW22. 29 I considered it appropriate to raise those cases with counsel for the applicant at the March hearing for three reasons. (1) The Full Court Case appeared to be relevant to determining the evidentiary burden which the applicant had to discharge in his application before this court, given that the applicant was in 8 The Full Court Case [1] (Rares, O'Sullivan and Feutrill JJ). 9 AKW22 v Commonwealth of Australia (No 2) [2023] FCA 955 (Single Judge Decision) 10 Single Judge Decision [1]. 11 It appears that the application was lodged on 12 August 2023 but was accepted for filing the following day. 12 Single Judge Decision [2]. -- 8 of 37 -- [2026] WASC 251 BYDDER J Page 9 immigration detention at all relevant times before his removal from Australia. (2) The Full Court Case and the Single Judge Decision raised a concern that AKW22 and the applicant were one and the same person. They were represented by the same counsel, given that the names of counsel for AKW22 and counsel for the applicant were the same. Further, based on Exhibits 1 and 2, the Full Court Case and the Single Judge Decision, both AKW22 and the applicant were (or appeared likely to be) Indian nationals. In addition, the applicant was removed from Australia on the same day that the Single Judge Decision indicated AKW22 was to be removed from Australia. If AKW22 and the applicant were the same person: (a) the Single Judge Decision appeared to be patently relevant to the application before this court, as it appeared to involve the dismissal of his habeas corpus application the day before the applicant was removed from Australia; and (b) the outcome of the Full Court Case may have been relevant to his application to this court. (3) The omission of any reference to the Full Court Case, the Single Judge Decision or any other decision involving the applicant AKW22, together with the fact that counsel for AKW22 and counsel for the applicant appeared to be the same person, raised a question about whether counsel for the applicant had complied with his duties to this court. 30 Those matters were raised with counsel for the applicant at the March hearing. At the end of the March hearing, I ordered that: (1) The applicant file by 4.00 pm on Monday, 20 April 2026 any further written submissions or affidavit evidence on which he wishes to rely. (2) The matter be adjourned to an ex parte hearing on Wednesday, 22 April 2026 at 10.00 am. The applicant moves for recusal 31 On 20 April 2026, the applicant filed a motion for recusal signed by his counsel on 17 April 2026 in the following terms: -- 9 of 37 -- [2026] WASC 251 BYDDER J Page 10 The plaintiff moves for the recusal of his Honour the Judge hearing his application for a writ of habeas corpus ad subjiciendum on the ground of his Honour's reasonably apprehended bias by prejudgement as demonstrated by: Particulars 1. Acting in excess of jurisdiction by undertaking inquiries, or having inquiries undertaken, into the plaintiff's conduct of prior matters determined by the Federal Court of Australia; and 2. Misconstruing evidence introduced as a consequence of such enquiries in a manner adverse to the plaintiff's present application when that evidence supported no such construction. 32 I take the first and second particulars to be ground 1 and ground 2 respectively of the motion for recusal. 33 On 17 April 2026, before filing the motion, the applicant filed submissions in support of the motion, together with an affidavit sworn by Mr Andrew Derik Gill on that day (Exhibit 3). 34 Mr Gill was the applicant's instructing solicitor in respect of the Federal Court applications filed on the applicant's behalf on 7 July 2023 and 13 August 2023,13 to which the applicant and the applicant's son refer in their affidavits. I will return to Mr Gill's evidence in considering the second basis on which the applicant moves for recusal. 35 As I have noted, the recusal application first came on for hearing at the April hearing. It was adjourned to the May hearing and between those two hearings the applicant filed further submissions. 36 At the May hearing, counsel for the applicant relied primarily on his written submissions but elaborated on the test for reasonable 13 Affidavit of Mr Andrew Derik Gill sworn 17 April 2026 (Exhibit 3), which refers to several applications Mr Gill filed on behalf of the applicant - an urgent interlocutory application in WAD 114/2023 lodged on 7 July 2023 and taken to have been filed on 9 July 2023 seeking orders restraining the Commonwealth from removing the applicant pending determination of his appeal ([4] - [6]), which Banks-Smith J dismissed on 10 July 2023 ([10]); an originating application (WAD 155/2023) seeking a writ of habeas corpus or orders in the nature of habeas corpus lodged and filed on 7 July 2023 ([7] - [8]); an oral application by counsel for another interlocutory injunction to prevent the applicant's removal in WAD 155/2023, which Jackson J dismissed on 10 July 2023 ([9], [11] - [16]); and an interlocutory application in WAD 155/2023 lodged and filed on 12 August 2023 seeking orders that the applicant be brought before the Federal Court on the return of the writ and that the respondent be restrained from removing the applicant pending the hearing and determination of his writ for habeas corpus ([17] - [20]), which was dismissed by Banks-Smith J on 13 August 2023 ([21]). As I have noted above, it appears that the application that Mr Gill identifies as having been filed on 12 August 2023, was lodged on that day and was accepted for filing the following day. -- 10 of 37 -- [2026] WASC 251 BYDDER J Page 11 apprehension of bias14 and further developed his submissions in response to questions from me. 37 I address below the various bases on which it was submitted that a reasonable apprehension of bias has arisen. Before doing so, it is necessary to refer to the relevant legal principles. Legal principles applicable to reasonable apprehension of bias and recusal 38 The relevant principles are set out in Reynolds v Rayney.15 I reproduce the relevant paragraphs of that decision below, omitting footnotes. 28 The general principles applying to whether a judge should recuse himself or herself on the ground of reasonable apprehension of bias are well-established: 1. The neutrality of a judge is fundamental to the administration of justice - independence and impartiality are essential to the maintenance of public confidence in the judicial system. 2. The test for the disqualification of a judge on the ground of apprehended bias is whether or not a fair- minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. 3. Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party. 4. The test for apprehended bias is objective. 5. The test for apprehended bias is a test of possibility as distinct from probability. The possibility must be real and not remote. 6. The determination of whether a fair-minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice largely 14 ts 62 - 65. 15 Reynolds v Rayney [2023] WASCA 144 [28] - [36] (Mazza and Vaughan JJA and Mullins AJA). See also Armet v Stephen Browne [2024] WASCA 44 [58] - [59] (Mitchell, Vaughan and Hall JJA) and GSA v Department of Communities [No 2] [2026] WASCA 36 [22] - [24] (Vaughan and Archer JJA). -- 11 of 37 -- [2026] WASC 251 BYDDER J Page 12 raises a factual issue - one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision. 7. The hypothetical fair-minded lay observer is not taken to have a detailed knowledge of the law; but, even so, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. 8. The hypothetical observer is reasonable, not unduly suspicious and is fair-minded and informed. The hypothetical observer is attributed with a broad knowledge of the material objective facts. The hypothetical observer is presumed: (a) to be reasonable and not to make snap judgments; (b) to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and (c) to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case. 9. However, the hypothetical observer is aware of the reality that the judge is human and is cognisant of human frailty. The hypothetical observer understands that 'information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making'. 10. The hypothetical observer is not so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias. 11. The hypothetical observer is not conceived of as a lawyer; but, rather, as a member of the public served by the courts. Accordingly, the hypothetical observer is not to be imbued with professional self-appreciation in a manner that aligns the fair-minded lay observer with the judiciary and the legal profession. It is the court's view of the public's view, not the court's own view, -- 12 of 37 -- [2026] WASC 251 BYDDER J Page 13 which is determinative. In this respect the hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. 12. A judicial officer should avoid any tendency to be over- ready to disqualify himself or herself from presiding over an appointed hearing. The case for disqualification must be 'firmly established' and a finding of apprehended bias is 'not to be reached lightly'. A judge should not disqualify himself or herself on the basis of a reasonable apprehension of bias unless 'substantial grounds' are established. 29 The test for disqualification on the ground of apprehended bias is sometimes referred to as the 'double might' test. That description emphasises that the test is not demanding and reflects the importance that justice not only be done but also manifestly be seen to be done. 30 Equally, however, it is the responsibility of a judge to sit and hear a case assigned to that judge. Judges do not select their cases and parties cannot select their judges. In Western Australia v Watson, the Full Court of the Supreme Court of Western Australia referred to what was said by Mason J (as his Honour then was) in this regard in Re JRL; Ex parte CJL: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 31 In Western Australia v Watson the Full Court observed that this passage made it clear that the duty of a judge to disqualify himself or herself for proper reasons is matched by an equally significant duty to hear any case for which there is no proper reason to disqualify himself or herself. 32 In Ebner v Official Trustee in Bankruptcy the plurality (Gleeson CJ, McHugh, Gummow & Hayne JJ) identified that the application of the apprehension of bias test involves two steps. First, it requires an identification of what might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a 'logical connection' established between that matter and the 'feared deviation from -- 13 of 37 -- [2026] WASC 251 BYDDER J Page 14 the course of deciding the case on its merits'. Their Honours said that: The bare assertion that a judge … has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 33 The last sentence in that passage suggests that there is an additional third step. In Isbester v Knox City Council Gaegler [sic] J set out those three steps as follows: Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. 34 The assessment of the reasonableness of the apprehension is considered from the perspective of the fair-minded lay observer. 35 In Webb v The Queen Deane J identified four main categories of case leading to disqualification by reason of reasonable apprehension of bias: 1. Interest - where the decision-maker has some direct or indirect interest in the proceedings (pecuniary or otherwise). 2. Conduct - either in the course of, or outside of, the proceedings. 3. Association - where the decision-maker has some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. 4. Extraneous information. 36 The categories are sometimes overlapping. For example, the third category (association) may overlap the first category (interest) or the fourth category (extraneous information). The categories have been regarded as providing a convenient frame of reference. So understood they are often useful as a logical tool in the application of the governing principles. -- 14 of 37 -- [2026] WASC 251 BYDDER J Page 15 39 In summarising those principles, Vaughan and Archer JJA recently said in GSA v Department of Communities [No 2]:16 [R]easonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the relevant judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide. In applying this principle it is necessary to identify what is said might lead the judicial officer to decide a case other than on its legal or factual merits and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed. 40 The High Court recently reaffirmed the Ebner test in SunshineLoans Pty Ltd v Australian Securities and Investments Commission in terms which endorsed the three-step analysis described by Gageler J in Isbester v Knox City Council and quoted above.17 41 I now turn to apply these principles to the applicant's motion for recusal. It is convenient to begin by considering the view that the fair-minded lay observer could have taken of the research undertaken in my chambers. The fair-minded lay observer and research undertaken in my chambers (grounds 1 and 2) 42 As I have already observed, research was done in my chambers in preparation for the March hearing on the current state of the law of habeas corpus. To the extent that this ground of the recusal application relies on a hypothetical fair-minded lay observer forming the view that there might have been more than that - namely an 'investigation of proceedings in the Federal Court of Australia in which the present plaintiff, represented by present counsel, had been involved'18 - there is no basis on which the lay observer could reasonably have formed that view. 43 As I have noted, the Memorandum of Counsel prepared by counsel for the applicant and the affidavit evidence before the court at the March hearing (Exhibits 1 and 2) went no further than to refer in the sparsest terms to two applications on foot before the Federal Court for habeas corpus when the applicant was removed from Australia. As to 16 GSA v Department of Communities [No 2] [2026] WASCA 36 [23]. 17 SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 [1] (Gageler CJ and Gleeson J), [60] (Gordon J), [105] (Edelman J), [126] (Steward J), [130] (Jagot J), [173] (Beech-Jones J). 18 Plaintiff's outline of submissions on recusal filed 17 April 2026 (AS1) [7]. -- 15 of 37 -- [2026] WASC 251 BYDDER J Page 16 those applications, the Memorandum of Counsel and Exhibits 1 and 2 asserted that the applications had not been determined at the time of the applicant's removal from Australia. 44 They did not provide the names of the cases or their case numbers. They did not refer to any of the other applications made by the applicant to the Federal Court or the Full Court of the Federal Court in respect of his detention. 45 Each of those cases in the Federal Court and the Full Court used a pseudonym for the applicant - AKW22. No reference was made to that pseudonym in the Memorandum of Counsel or in the affidavits (Exhibits 1 and 2) before the court at the March hearing.19 46 A fair-minded lay observer could not reasonably form the view that an investigation into the Federal Court and Full Court proceedings in which the applicant and his counsel were involved might have occurred. The material before the court prior to the March hearing did not suggest that there had been a Federal Court (much less a Full Court) decision in respect of the applicant's detention, let alone provide sufficient information to enable such an investigation to be undertaken. The applicant and his son had deposed only to two unheard and undetermined applications to the Federal Court prior to his removal from Australia and, as I have said, provided no further details. 47 To the extent that either ground of the motion for recusal depends on the fair-minded lay observer forming the view that an investigation into the Federal Court and Full Court proceedings in which the applicant and his counsel were involved might have occurred, it must fail. Neither the research undertaken nor raising the Full Court Case and the Single Judge Decision departed from ordinary judicial practice (ground 1) 48 As the Court of Appeal noted in Reynolds v Rayney, while the hypothetical fair-minded lay observer is not taken to have a detailed knowledge of the law, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. 19 I have directed that the same pseudonym - AKW22 - be used in these reasons. I have also omitted reference to the name of the applicant's son. However, the applicant's application to this court for a writ of habeas corpus was commenced in his own name, not in the name of AKW22, and there was nothing in the material filed by the applicant which made any reference to 'AKW22'. -- 16 of 37 -- [2026] WASC 251 BYDDER J Page 17 49 In Johnson v Johnson,20 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said of the test for reasonable apprehension of bias: Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.' Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. 50 One way in which a judge may start thinking about the issues in a case is to consider the relevant law. For that purpose, the judicial officer may undertake research into the current state of the law. 51 The judicial officer may also raise the fruit of that research with the parties (or, if represented, their counsel or solicitors). Doing so can help to identify the real issues and problems in the case. 52 Both research into the current state of the law and raising the fruit of that research during a hearing are part of ordinary judicial practice. The desirability of doing so is shown by what occurred in this case. Left to the cases cited by counsel for the applicant in his Memorandum of Counsel, the court would not have been aware: (a) of the Full Court Case, which stated a different evidentiary burden for an applicant detained under s 189(1) of the 20 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson) [13] (emphasis added and footnotes omitted). Johnson v Johnson was concerned with an allegation of reasonable apprehension of bias on the basis of prejudgment. -- 17 of 37 -- [2026] WASC 251 BYDDER J Page 18 Migration Act 1958 (Cth) (Migration Act) to discharge in order to obtain a writ of habeas corpus from the evidentiary burden identified by counsel for the applicant; or (b) that the Federal Court and the Full Court of the Federal Court have dismissed cases brought by the applicant in respect of his immigration detention, including a dismissal of an application for habeas corpus upheld on appeal, which may raise questions of abuse of process, res judicata or issue estoppel affecting the procedure adopted to determine the habeas corpus application before this court. 53 Counsel for the applicant did not contend that researching the current state of the law or raising the fruit of that research during a hearing would ordinarily give rise to a reasonable apprehension of bias. However, he submitted that doing so in the context of an application for the issue of a writ of habeas corpus, rather than after the return of the writ, could give rise to a reasonable apprehension of bias - and had done so in this case. The position remains the same in the context of the applicant's habeas corpus application (ground 1) 54 In counsel for the applicant's first set of written submissions21 and his oral submissions he contends that a reasonable apprehension of bias has arisen because I undertook of my own motion and without reference to counsel, prior to the March hearing, an investigation of proceedings in the Federal Court of Australia in which the applicant had been involved and represented by his counsel before this court. That, it is said, is such a departure from ordinary judicial practice that it gives rise to a reasonable apprehension of bias. 55 The applicant also contends that my raising the Full Court Case and the Single Judge Decision with his counsel gives rise to a reasonable apprehension of bias, as 'the poisoned fruit of an extra- judicial inquiry conducted without notice to the parties or their approval'.22 56 These submissions are made with reference to two of the categories of case identified by Deane J in Webb v The Queen:23 21 AS1 [7], [35] - [36]. 22 AS1 [37]. 23 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74. -- 18 of 37 -- [2026] WASC 251 BYDDER J Page 19 disqualification by conduct and disqualification by reliance on extraneous information.24 57 For the reasons I have already given, to the extent those submissions depend on the fair-minded lay observer forming the view that an investigation into the Federal Court and Full Court proceedings in which the applicant and his counsel were involved might have occurred, they must be rejected. The balance of my reasons on this question are directed to research into the current state of the law of habeas corpus and its fruit. 58 The ordinary judicial practice referred to in counsel for the applicant's written submissions was developed in oral submissions during the May hearing. In the context of inviting me to recuse myself even if there was no reasonable apprehension of bias, on the basis that there could still be real doubt about whether there was a reasonable apprehension of bias, counsel for the applicant said:25 The lay observer could conclude or apprehend – could, not would – could apprehend that from the conduct of the matter so far, your Honour might also deviate from the course laid down in the 1640 Act26 and many years of procedure for the hearing of an application for habeas corpus and might apprehend – might, again, apprehend – that your Honour might again deviate from the accepted practice, not only in refusing the writ but even if your Honour were to grant the writ on the hearing of the return, if, in fact, your Honour should be listed and allocated to hear the return. 59 In a similar vein, counsel for the applicant said in answer to a question from me:27 BYDDER J: … Would you accept that ordinary judicial practice would include a judge preparing for a case allocated to that judge by researching the current state of the law as it applies to the case? CAMERON, MR: As it applies to a writ of habeas corpus, yes, but to a very limited extent because the judge would be required to look first at the evidence and if satisfied on the evidence (a) that the plaintiff was detained, (b) that he was detained by the respondent and (c) without judicial warrant, if you – if the evidence, prima facie – and it only has to be prima facie – satisfied your Honour of that, then there would be no call for any further investigation. 24 ts 65. 25 ts 59 - 60. 26 That is, the Habeas Corpus Act 1640 (Imp). 27 ts 67 - 68. -- 19 of 37 -- [2026] WASC 251 BYDDER J Page 20 … In my experience, this is – and I've done many of these applications. It's a 15-minute exercise because the judge looks at the evidence, decides whether those factors are satisfied and grants the writ. And in [Dien], the writ was not granted for reasons of acceleration, but, again, in my experience, the writ has always been granted and has always been served. And it's not going to happen in that – in this case, but in most cases, when the respondent reads the writ and the reference to imprisonment at the end of it, very often the detainee is released, and that has been my experience in the majority of cases. It won't happen here. 60 Counsel for the applicant also referred to the urgency that usually attends habeas corpus applications in the context of the ordinary judicial practice to which he referred, including where the applicant is unrepresented:28 [I]n some circumstances – I've never been involved in one, but in some circumstances, applications have been made to a judge over the telephone, and they are often made informally in the sense – and I have been involved in one. I've served applications on the Chief Justice in another jurisdiction – on the Chief Justice's dining table in his home at 9 o'clock at night. So it's a very flexible remedy. And it's not anticipated that if a person is unrepresented that the judge will look at the – and investigate with the applicant the evidence and the law in relation to the law of habeas corpus. In my submission, it would simply be granted. And all of that can be investigated upon the return and by the respondent, and that is, in my submission, the appropriate [course]. BYDDER J: And I think I've indicated to you previously the difficulty that I have with that, Mr Cameron, is that research was undertaken in my chambers on the current state of the law. CAMERON, MR: Yes. BYDDER J: And do you accept that that would be an ordinary judicial practice to make sure that the judge is satisfied or has considered what the law is? CAMERON, MR: Yes, but, in my submission, that would not comprehend the sort of investigation that was undertaken - - - BYDDER J: Yes, well that's - - - 28 ts 71 - 72. See also ts 75 - 76. -- 20 of 37 -- [2026] WASC 251 BYDDER J Page 21 CAMERON, MR: - - - because that wouldn't occur where a person was unrepresented. BYDDER J: Wouldn't - - - CAMERON, MR: That wouldn't occur when an application was made over the telephone. BYDDER J: And why is that? CAMERON, MR: Because the urgency which it is given under the provisions of the 1640 Act. 61 I accept that urgency usually attends habeas corpus applications, although (as the history of this case shows) that is not always so. I also accept that the ancient writ of habeas corpus is an important means of protecting the liberty of the subject and vindicating the rule of law. However, in a habeas corpus application as with any other legal proceeding, the court must administer justice according to law. To do so, it must ascertain what the law is. 62 The legal profession plays a crucial role in the administration of justice by, inter alia, ensuring the court is made aware of relevant legal authority (even when contrary to their clients' interests) and complying with the disclosure requirements applicable to ex parte hearings.29 However, it is ultimately for the court to declare the law. Undertaking legal research and raising the relevant fruit of that research with parties or their legal representatives plays an important role in the administration of justice. No reasonable apprehension of bias can arise on the basis of prejudgment merely because the court (as here) has undertaken legal research and raised the potentially relevant fruit of that research with counsel. 63 The position is no different at the stage of determining whether the writ of habeas corpus should issue - a determination yet to be made in this case - at least to the extent that the matters raised relate to the evidentiary burden which the applicant must discharge or the procedure that should be adopted for dealing with the habeas corpus application. 64 The Full Court Case is plainly relevant to determining the evidentiary burden which the applicant must discharge. Indeed, even if the Full Court Case had not been determined in respect of the applicant, its statement of the evidentiary burden a person in the applicant's 29 Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA) r 27 and r 29; Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) r 19.4 and r 19.6. -- 21 of 37 -- [2026] WASC 251 BYDDER J Page 22 position (at least as at 2023) must discharge would have bound this court unless it was plainly wrong30 or distinguishable. Whether it is plainly wrong or distinguishable is a matter for another day. 65 The Full Court Case and the Single Judge Decision are relevant to determining the procedure that should be adopted for dealing with the applicant's habeas corpus application. The court is empowered to require the applicant to serve the application on the respondent before deciding whether to issue a writ of habeas corpus under the Rules O 57 r 2(1)(d). The court should consider whether to exercise that power, given the possibility that (at least) the Full Court Case and the Single Judge Decision may raise questions of abuse of process, res judicata or issue estoppel. 66 As I have already noted above at [29(3)], it was also appropriate to raise the Full Court Case and the Single Judge Decision with counsel for the applicant given the question which the lack of reference to them or any other Federal Court or Full Court decision involving the applicant raised about whether his counsel had complied with his duties to this court. 67 No reasonable apprehension of bias can arise in this case merely because research into the current state of the law of habeas corpus identified the Full Court Case and the Single Judge Decision. Nor can a reasonable apprehension of bias arise merely because I raised those cases with counsel for the applicant in this context. Necessity and reasonable apprehension of bias (ground 1) 68 Counsel for the applicant submits31 that it was unnecessary for him to cite the Full Court Case in his submissions (or for me to raise the Full Court Case with him) in light of two cases he did cite in his Memorandum of Counsel, namely McHugh v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (McHugh)32 and Dien v Manager of the Immigration Detention Centre at Port Hedland (Dien).33 I do not accept that submission. 30 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). 31 AS2 [21] - [27]. 32 McHugh v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602. 33 Dien v Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 (Full Court of the Supreme Court of Western Australia). -- 22 of 37 -- [2026] WASC 251 BYDDER J Page 23 69 Both Dien and McHugh recognise that an applicant for a writ of habeas corpus must discharge an evidentiary burden.34 70 McHugh addressed the evidentiary burden in the context of detention under s 189 of the Migration Act where the detainee may have been an Aboriginal Australian (which had consequences for the operation of s 189). In the Full Court Case Rares, O'Sullivan and Feutrill JJ referred to and applied McHugh in the context of the evidentiary burden that AKW22 had to discharge, including the observation of Besanko J in McHugh that an applicant's evidentiary burden is very fact sensitive.35 71 Given that the Full Court Case considered the reasoning in McHugh, on which counsel for the applicant relied, I do not accept that it was unnecessary to refer to the Full Court Case. To the extent that it is submitted that it was unnecessary for me to raise the Full Court Case with counsel for the applicant on this basis and my doing so gave rise to a reasonable apprehension of bias, I also reject that submission. The Full Court Case is a case that is on point and involves facts closer to those affecting the applicant than the facts in McHugh. That the Full Court Case is in fact a case about the applicant only reinforces this conclusion. 72 In oral submissions, counsel for the applicant further submitted that raising the Full Court Case at the April hearing was unnecessary because the writ is available as of right, and the mere fact that it was raised might give the fair-minded lay observer a reasonable apprehension that I was motivated by prejudgment.36 It was submitted that legal argument on the appropriate evidentiary burden is to occur upon the return of the writ.37 This submission must be rejected for two reasons. 73 First, this submission assumes that judicial officers are to take the law as it is presented to them by counsel, at least in the context of an application for a writ of habeas corpus.38 It is not ordinary judicial practice for a judicial officer to uncritically accept submissions on the state of the law regarding an application before that judicial officer. On 34 Dien 418 - 419 (Malcolm CJ, Seaman J agreeing) and 426 - 427 (Ipp J, Seaman J agreeing); McHugh [58] - [60] (Allsop CJ), [92] - [96] (Besanko J), [266] - [273], [283] - [286] (Mortimer J). 35 Full Court Case [8] - [9], [15] - [19], [34] - [44]. 36 ts 84 - 85. 37 ts 78. 38 See in this regard ts 85. -- 23 of 37 -- [2026] WASC 251 BYDDER J Page 24 the contrary, the uncritical acceptance of submissions may be a serious departure from ordinary judicial practice. 74 Second, determining the evidentiary burden on the relevant law and facts, and whether it has been discharged, is not a matter that should await the return of a writ of habeas corpus. Those matters go to whether the writ should issue at all. 75 Counsel for the applicant also submitted that:39 Rather than summarily determining the application in the required manner, his Honour may reasonably be seen as having descended into the arena, and, in so doing, by having regard to issues on which the onus lay upon the Minister on the return to the writ, disqualified himself from any further determination in the matter. 76 This submission faces the same difficulty and must also be rejected. Raising the Full Court Case or the Single Judge Decision with counsel for the applicant could not give rise to a reasonable apprehension of bias on this basis. 77 To the extent that this submission asserts that raising the Full Court Case or the Single Judge Decision with counsel (or the research that identified those cases) might give rise to a reasonable apprehension of bias on the basis that I had assumed the role of a contradictor,40 I do not accept the submission. Raising those cases with counsel for the applicant involved the kind of exchange between counsel and the court identified without criticism in Johnson. They do not rise to the level that would admit of a reasonable apprehension of bias on the ground of prejudgment. Apparent disagreement and reasonable apprehension of bias (ground 1) 78 In oral submissions at the May hearing, counsel for the applicant contended that my raising of the Full Court Case could give rise to a reasonable apprehension of bias because the fair-minded lay observer might apprehend that counsel and I disagreed as to the evidentiary burden in an application for habeas corpus.41 79 Counsel for the applicant described the apprehension as follows: 42 39 AS1 [12]. 40 See also ts 59. 41 ts 80. 42 ts 82 - 83. -- 24 of 37 -- [2026] WASC 251 BYDDER J Page 25 The lay observer might see that you and I disagree on what the evidential burden is and that on my view of the evidential burden, your Honour strayed beyond what was necessary in a directions hearing on the application for the writ, what was essentially necessary, and that of itself might, in the eyes of a lay observer – and this is again hypothetical; it's not stating that this is the case – that your Honour did so in order to substantiate a prejudgment. … I'm not making any statements on what your Honour has decided because I accept that you haven't reached a concluded view on it, but you have to reach a concluded view, and the reasonable lay observer may take the view that this is coloured, especially when the issue is your own – your Honour's own conduct of the matter, and this is why this whole procedure is eminently unsatisfactory and has been criticised by the former Chief Justice, Wayne Martin, as being unsatisfactory in a different context, in which a judge who is said not to be impartial has to make an impartial decision on his own impartiality. It's a nonsense. 80 I do not accept that submission. It is commonplace in court hearings for counsel to make submissions and for some (or all) of those submissions to be doubted or rejected by the court. That may be apparent from the exchanges between counsel and the court. 81 As counsel for the applicant accepted, I have made no finding as to what the evidentiary burden is in this case.43 I have reviewed the transcript of the March hearing, the April hearing and the May hearing and am satisfied that I have gone no further than expressing tentative views of the kind contemplated in Johnson. A reasonable apprehension of bias cannot have arisen in this case based on any 'disagreement'. Extraneous material and reasonable apprehension of bias (ground 1) 82 In his written submissions44 and in oral submissions,45 counsel for the applicant contended that I had considered extraneous material to which I was not entitled to have access when determining the application. He noted that he was not aware of what that extraneous material consisted beyond the cases that he was referred to at the March hearing and the April hearing.46 83 The only products of the research undertaken in my chambers were authorities on the law of habeas corpus, some of which were 43 ts 80 - 83. 44 See for example AS2 [47] - [50]. 45 ts 102. 46 ts 101 - 102. -- 25 of 37 -- [2026] WASC 251 BYDDER J Page 26 raised with counsel for the applicant. For the reasons I have given, there is no basis for a reasonable apprehension of bias to arise in respect of the research undertaken in my chambers into the current state of the law of habeas corpus. 84 To those reasons I would add that while the evidentiary burden is very fact sensitive and this court may ultimately be persuaded that the evidentiary burden identified in the Full Court Case is distinguishable on the facts as they apply to the applicant now, authorities such as the Full Court Case can nevertheless assist the court in determining the evidentiary burden applicable to an applicant for habeas corpus in a particular case. The Single Judge Decision and reasonable apprehension of bias (ground 2) 85 In his written submissions in support of the motion for recusal,47 counsel for the applicant contended that I had provisionally held on the basis of the Single Judge Decision that: (a) prior proceedings in the Federal Court of Australia were relevant to the ex parte application for habeas corpus in this court; (b) an application for habeas corpus had been heard and dismissed by the Federal Court on 13 August 2023; (c) the applicant's claim that the application filed on 12 August 2023 had not been heard and determined when he was removed from Australia on 14 August 2023 was false; and (d) counsel for the applicant knew from representing the applicant in the Federal Court that the applicant's claim in (c) above was false, positively misled the court by relying on it when he knew that it was false and further misled the court by omission in failing to refer to the Federal Court proceedings in his Memorandum of Counsel. 86 Counsel for the applicant also appears to contend that in raising my concerns with him, I had introduced evidence or gone behind the evidence in the affidavits (Exhibits 1 and 2).48 47 AS1 [6]. 48 AS1 [10], [37]. -- 26 of 37 -- [2026] WASC 251 BYDDER J Page 27 87 These contentions are without substance. No findings had been made, provisionally or otherwise 88 This contention ignores what was said at the March hearing taken as a whole. In particular, it is inconsistent with what was said towards the end of the hearing on that day:49 BYDDER J: … I think it is important for this court to have clarity around what the factual circumstances were at the time of your client's removal with relation to the Federal Court proceedings. Including, it seems to me, critically, what the position was in respect of the decision of Banks-Smith J of 13 August 2023, that was the subject of her Honour's reasons the following day, the day your client was removed from Australia. CAMERON, MR: Yes. BYDDER J: It seems to me to be patently relevant in circumstances where whatever the position, if there were other applications on foot, there was an application, Banks-Smith J says, for habeas corpus and an interlocutory injunction, and it was dismissed. And the next day your client was removed from Australia. Now, if that's the case, it seems to me you're going to have a fairly difficult task, are you not, to obtain habeas corpus now, are you not? If it was lawful to remove him on the day he was removed, because the Federal Court had dismissed the habeas corpus application, and had refused an interlocutory injunction. CAMERON, MR: Yes. If, in fact, the Federal Court had dismissed the habeas corpus application. But at this stage, that's something that I don't concede. In my submission, her Honour is incorrect in the first sentence of that decision. BYDDER J: You will need to persuade me of that through evidence. And was there any appeal from her Honour decision? CAMERON, MR: No, there was no appeal from the decision. BYDDER J: All right. Well, Mr Cameron, I'm, of course, content to list this to a later date for fuller argument, and to provide you with an opportunity to put on further written submissions and further evidence in support of the application. But I trust you've heard me as to the matters that I am concerned about. CAMERON, MR: I'm obliged to your Honour for your (indistinct) BYDDER J: And I am concerned - - - 49 ts 13 - 15 (with emphasis added). -- 27 of 37 -- [2026] WASC 251 BYDDER J Page 28 CAMERON, MR: Yes. BYDDER J: - - - Mr Cameron, as things stand at the moment, about whether you have provided this court with the facts and the law, as you would be required to do under the relevant conduct rules. And I can take you to them. But I am concerned, very concerned, that I was not taken in written submissions to AKW22 v Commonwealth of Australia [2023] FCA 786. It's not even referred to when it was a case dealing directly with your client. And – I'm sorry, I beg your pardon. I've given you the wrong citation. It was AKW22 – there's a few of them, I'm afraid, v Commonwealth of Australia [2023] FCAFC 71, is the one I was referring to. It would seem to me that that ought to have been cited, given not only does it appear on its face to be directly on point, subject to what the High Court might have said in the later case, but it relates directly to your client. And I am concerned, in addition, that there's affidavit evidence referring to two applications without more, in relation to matters that were live before the court, before the Federal Court, at the time your client was removed. But there is no reference to what Banks-Smith J determined the night before your client was removed. It seems to me that ought to have been put before the court, and that's a very serious matter that it wasn't. Now, obviously, I will hear you as to that, and it may be that my concerns will be allayed. But I think I need to say to you very clearly, I am very concerned. CAMERON, MR: Well, I'm concerned that your Honour is concerned that my conduct has been viewed in some way as being deceptive. That was not the case. And I can set out in my submissions the reasons why I proceeded in this manner. BYDDER J: Yes. And I haven't come to a conclusion in respect of that, I want to emphasise. But I think it's only fair to you to raise my concerns. CAMERON, MR: I'm obliged to your Honour. BYDDER J: And add directions for that purpose. And if, indeed, we had gone on to the hearing of the matter, I would have raised them with you as well, and potentially adjourned the hearing - - - CAMERON, MR: Yes. BYDDER J: - - - to allow you to deal with it. But in any event, we're dealing with it by way of directions. Mr Cameron, all of that being so, how long do you think you would like to put on any further submissions and evidence that you would like to rely upon in support of the application? 89 That part of the hearing and, in particular, the passages I have emphasised, demonstrate that I had made no findings, provisionally or otherwise. I invited counsel for the applicant to put on further -- 28 of 37 -- [2026] WASC 251 BYDDER J Page 29 submissions and evidence and my comments to counsel clearly indicate that any view I had expressed on this point was tentative. 90 On the basis of what had emerged from research into the current state of the law of habeas corpus, it was appropriate that my concerns be raised. No evidence was introduced 91 I raised with counsel for the applicant the Full Court Case and the Single Judge Decision and the concerns which arose from them. I did not 'introduce evidence'. 92 Nor did raising either or both of those cases support any reasonable apprehension of bias on the ground of prejudgment on the basis that I had sought to question or undermine the evidence on which the applicant relies in his habeas corpus application. For the reasons I have given, the material before the court prior to the March hearing did not enable any 'investigation' to be undertaken into the Federal Court and Full Court proceedings in which the applicant and his counsel were involved. 93 When research into the current state of the law identified the Single Judge Decision and raised the possibilities that it related to the applicant and that he had been refused a writ of habeas corpus the night before he was removed from Australia, it was appropriate for me to raise those matters with counsel for the applicant. Once again, that did not give rise to a reasonable apprehension of bias. The relevance of Federal Court proceedings to the application in this court 94 I have already referred to the potential relevance of the Full Court Case and the Single Judge Decision. That potential relevance includes the possibility that the Full Court Case or the Single Judge Decision might raise a res judicata, issue estoppel or abuse of process question, which may in turn be relevant to the procedure adopted for determining the applicant's application for habeas corpus in this court. 95 In Pauga v Chief Executive of Queensland Corrective Services,50 the Full Court of the Federal Court accepted (albeit in obiter) that 'any 50 Pauga v Chief Executive of Queensland Corrective Services [2023] FCAFC 58; (2023) 238 FCR 96 (Pauga) [181] - [189] (Wigney, Bromwich and Abraham JJ). -- 29 of 37 -- [2026] WASC 251 BYDDER J Page 30 proposition that habeas corpus is in some special category which prevents the court from restraining abuses of its process is incorrect'.51 96 In a migration law context, Collier J held in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3)52 that res judicata and abuse of process principles can be applied in respect of applications for writs of habeas corpus. 97 Counsel for the applicant accepted that in the circumstances of some habeas corpus applications questions of res judicata, issue estoppel or abuse of process could arise, but submitted that it did not arise in the circumstances of this case.53 Whether or not those questions ultimately arise in this case, the research into the current state of the law of habeas corpus identified the possibility that res judicata, issue estoppel or abuse of process questions may arise from (at least) the Full Court Case and the Single Judge Decision. 98 In those circumstances and given the other matters identified above, it was appropriate that both cases be raised with counsel for the applicant and no reasonable apprehension of bias could have arisen from my raising them with him in this way. Whether an application for habeas corpus had been heard and dismissed in the Single Judge Decision 99 The applicant was given the opportunity to lead evidence on the nature and effect of the Single Judge Decision and has done so. That opportunity reflected that I was open to persuasion in relation to the nature and effect of the Single Judge Decision. 100 On Mr Gill's evidence (and acknowledging that lodging a document may involve the document being accepted for filing at a later date): (a) an application was filed in the Federal Court on 7 July 2023, being the originating application in WAD 155/2023 seeking a writ of habeas corpus or orders in the nature of habeas corpus (originating application), which appears to remain open (although it is unclear why the originating application has not been pursued); and 51 Pauga [189] (Wigney, Bromwich and Abraham JJ). 52 Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811 [56], [61] - [79]. 53 ts 106. -- 30 of 37 -- [2026] WASC 251 BYDDER J Page 31 (b) an application was filed in the Federal Court on 12 August 2023, being an interlocutory application in WAD 155/2023 seeking:54 1. An order ex parte directed to the Officer in Charge of the Villawood Immigration Detention Centre directing him to produce the Applicant before the Court on the return date of the writ; 2. An ex parte order restraining the Respondent from removing the Applicant from Australia pending the hearing and determination of his application for the writ of habeas corpus which was dismissed by Banks-Smith J on 13 August 2023. 101 I pause to observe that it appears from the application lodged on 12 August 2023 and the orders made by Banks-Smith J on 13 August 2023 that both interlocutory orders sought by the applicant (including order 1 seeking habeas corpus) were dismissed. 102 Nevertheless, I accept that: (a) the originating application remains open and Banks-Smith J did not determine that application;55 and (b) her Honour's reasons are primarily directed to questions relevant to an interlocutory injunction, despite the orders made on 13 August 2023 and paragraph 1 of those reasons (which is not to say that Banks-Smith J did not dismiss the interlocutory habeas corpus application or did not correctly describe the interlocutory application before her Honour, as counsel for the applicant contended at the March hearing). 103 While I accept that Banks-Smith J did not dismiss the applicant's originating application, on one view her Honour's reasons implicitly reject the applicant's apparent reliance on non-compliance with s 486P (and Part 8C more broadly) of the Migration Act to support a contention that his detention in Australia was unlawful. The applicant's reliance occurred against a background where the Federal Court had already dismissed his earlier habeas corpus application. Banks-Smith J was not persuaded that the applicant had established a serious question 54 Exhibit 3 [18] and Attachment K at 36. 55 Exhibit 3 [8] and Attachment E at 22. -- 31 of 37 -- [2026] WASC 251 BYDDER J Page 32 to be tried.56 This was later upheld on appeal by the Full Court of the Federal Court.57 104 It is unclear whether the applicant intends to rely on s 486P or Part 8C of the Migration Act more broadly to support his habeas corpus application in this court. That is a matter for another day. Conclusion 105 For the reasons set out above, ground 2 of the motion for recusal ('[m]isconstruing evidence introduced as a consequence of such enquiries in a manner adverse to the plaintiff's present application when that evidence supported no such construction') is without substance. Identifying a logical connection between the matters raised by the applicant and a feared deviation from determining his application for habeas corpus other than on its legal and factual merits 106 I specifically raised with counsel for the applicant the requirement for a logical connection between the matters raised and the feared deviation from the course of deciding the case on its legal and factual merits. Counsel for the applicant accepted that requirement and said:58 [I]t would be necessary to extract a connection in the present case. And it would be my submission that even if the plaintiff were to rely solely on the investigations carried out, then, in my submission, that would be a sufficient deviation to meet the test. But, in fact, the plaintiff goes one step further insofar as the plaintiff relies upon the use made by the presiding judge of the material that came as a result of that investigation and put it to counsel, and that was the basis for adjournment of the matter to a second directions hearing and for the adjournment to today's hearing. … So, in my submission, the plaintiff, in fact, goes a little further than is actually necessary because the plaintiff links conduct with extraneous material, which are two of the grounds set out in Webb. And in Webb, Deane J pointed to the overlap of two of the different grounds. But we rely upon overlap of grounds of conduct and combined with extraneous material. I think that's the crucial – that is the crucial point, and it's not necessary for – I adopt my written submissions, which your Honour has no doubt read. 56 Single Judge Decision [5] - [6], [16] - [20], [25] - [26], [30], [34]. 57 AKW22 v Commonwealth of Australia [2024] FCAFC 22 [31] - [36]. 58 ts 65. -- 32 of 37 -- [2026] WASC 251 BYDDER J Page 33 107 I have already referred (at [58] above) to an earlier submission made by counsel for the applicant in the May hearing that also appears to assert the existence of a logical connection and which I set out again below for convenience:59 The lay observer could conclude or apprehend – could, not would – could apprehend that from the conduct of the matter so far, your Honour might also deviate from the course laid down in the 1640 Act and many years of procedure for the hearing of an application for habeas corpus and might apprehend – might, again, apprehend – that your Honour might again deviate from the accepted practice, not only in refusing the writ but even if your Honour were to grant the writ on the hearing of the return, if, in fact, your Honour should be listed and allocated to hear the return. 108 As I understand counsel for the applicant's submission, it is said that what I have done thus far is such a deviation from the ordinary judicial practice relating to habeas corpus applications that this is sufficient for the fair-minded lay observer to fear that I might continue to deviate from ordinary judicial practice.60 109 For the reasons I have already given, I do not accept that there has been a material (or indeed any) deviation or departure from ordinary judicial practice. I would add that in my opinion neither the research undertaken in my chambers into the current state of the law of habeas corpus, nor my raising the Full Court Case or the Single Judge Decision with counsel for the applicant, could create a reasonable apprehension that I would decide this case other than on its legal and factual merits. On the contrary, they reflect a concern to decide this case on its legal and factual merits, including the correct identification of the evidentiary burden which the applicant must discharge for the writ of habeas corpus to issue. The way in which the hearings were conducted 110 For completeness, I note that counsel for the applicant expressly disclaimed any submission that the way in which I had engaged with him could give rise to a reasonable apprehension of bias.61 111 I have carefully read the transcript of each of the March hearing, the April hearing and the May hearing. I am satisfied that nothing about 59 ts 59 - 60. 60 See in this regard ts 92, 97 - 103. 61 ts 57. -- 33 of 37 -- [2026] WASC 251 BYDDER J Page 34 the way I engaged with counsel for the applicant at those hearings could give rise to a reasonable apprehension of bias. Invitation to decline to hear the matter 112 In oral submissions at the May hearing, counsel for the applicant drew my attention to the following passage from Ebner:62 19 Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 20 This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 21 It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise. 113 Counsel for the applicant invited me to '[pass] on a chalice which may be poisoned unless in other hands'.63 62 ts 57; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [19] - [21] (Gleeson CJ, McHugh, Gummow and Hayne JJ). I have included paragraph 19, as the opening of paragraph 20 refers to it. -- 34 of 37 -- [2026] WASC 251 BYDDER J Page 35 114 I have carefully considered counsel for the applicant's submission that I should decline to sit on the matter even if I am not satisfied that there is a reasonable apprehension of bias. I have concluded that I should not decline to sit on the matter. 115 For the reasons stated above, I do not consider that there is a real doubt as to whether a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the determination of the application for a writ of habeas corpus. A fair-minded lay observer could not reasonably hold that apprehension on any of the bases advanced by the applicant. 116 Judges do not choose their cases and are not at liberty to decline hearing a matter without good cause.64 I have a duty to determine the application according to law and there is no compelling reason for me to decline to continue hearing this matter. 117 In my view, any judge hearing the applicant's habeas corpus application would have to be put on notice of the Full Court Case and hear submissions on that decision, both because the decision was made in respect of the applicant and because of its relevance to the evidentiary burden that the applicant must discharge in the application before this court. As I have noted, the judge hearing this application is bound to follow decisions of intermediate appellate courts unless the decision is plainly wrong or distinguishable.65 And as I have already said, whether the evidentiary burden here is the same as the one identified in the Full Court Case or that case is plainly wrong or distinguishable is a matter for another day. 118 The presiding judge also ought to be aware of (at least) the Full Court Case and the Single Judge Decision, because there has been at least one dismissal of an application for habeas corpus by the applicant and an unsuccessful appeal of that dismissal, which may raise questions of res judicata, issue estoppel and abuse of process. How that possibility is dealt with is a matter for further directions, including (as I have already noted) by considering whether the court should exercise the power conferred by the Rules O 57 r 2(1)(d). 63 ts 58 - 59. 64 Reynolds [30] - [31]. 65 Farah [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). -- 35 of 37 -- [2026] WASC 251 BYDDER J Page 36 Disposition 119 For these reasons, the applicant's motion for recusal will be dismissed and I will continue to hear the applicant's habeas corpus application. 120 I will hear counsel for the applicant on the next steps that should be taken in the applicant's application for a writ of habeas corpus, including whether I should direct under the Rules O 57 r 2(1)(d) that notice of the application be served on the Commonwealth Minister for Home Affairs66 or, if the Minister is not the appropriate respondent, then the person who is the appropriate respondent, having regard to: (a) the concerns I have expressed about the material currently before the court and the possibility that previous decisions of the Full Court of the Federal Court or the Federal Court may give rise to issues of abuse of process, res judicata or issue estoppel; and (b) the practical effect of issuing the writ, given I am informed by counsel for the applicant that: (i) the applicant is currently at large in India (albeit in his submission constructively detained);67 and (ii) if the writ is issued the applicant would voluntarily return to Australia and probably be placed in immigration detention pending the hearing on the return of the writ.68 66 The Minister is identified as the respondent in the Memorandum of Counsel filed 27 March 2026. 67 Memorandum of Counsel filed 27 March 2026 [16]; ts 39. 68 ts 39 - 40. -- 36 of 37 -- [2026] WASC 251 BYDDER J Page 37 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Hon Justice Bydder 23 JUNE 2026 -- 37 of 37 --