Here’s another record breaking effort from the Department of Delays. This one from David Thomas, previously of the Queensland Supreme Court and the Federal Court (Qld Branch Office), who is principally responsible for a two-year-seven-months delay in the delivery of a migration judgment.
Thomas got a gig on the Supremes in the era of Campbell Newman (Of Glorious Memory), recommended for elevation from MinterEllison by the Conveyancer General, Jiving Bjelke-Bliejie.
Less than four years later Bookshelves Brandis picked him out for the Federal Court – that was in June 2017.
Thomas also had a stint as President of the AAT and retired from the FCA in January 2024, leaving an unfinished judgment in his bottom drawer – Mihai v Minister for Immigration.
There was a one day hearing on March 23, 2022, with judgment delivered nearly three years later on October 24, 2024.
By then Justice Berna Collier had been given the task of finishing the job – but it took another nine months. She explained the process in para 3:
“The matter was heard by Thomas J of this Court on 23 March 2022. In the interim period his Honour retired, and the matter was re-docketed to me. On 28 February 2024 the Associate to the Chief Justice contacted the parties and asked if they sought a further hearing or an opportunity to put on further submissions. The Minister did not seek a further hearing, however, did seek to make further submissions in light of the decision of the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.”
Memories of Kathleen Farrell’s forgotten and overdue judgment being flicked to Ian Jackman after she skipped into the wide blue yonder.
In there meantime, Thomas’ Romanian migration applicant got tired of hanging about and voluntarily left Australia on May 21, 2024 – although he continued to press the application.
He made an earnest submission that he would straighten out his drug addiction which was primarily the reason for acts of domestic violence, where three former partners made complaints to the police about a series of assaults, resulting in two convictions.
He had also been sentenced to three years, 10 months imprisonment in the NSW District Court for assault causing death.
He said he would face hardship if he returned to Romania, although he could possibly get farm work in France.
The psychological evidence was not helpful: he had a lack of insight into his behaviour, and tended to blame his victims for what he did to them.
Needless to say, Collier upheld the decision of the tribunal and the revocation of his visa. It just took an eternity to get there.
Mihai v Minister for Rejections and Deportations
Soft Sandy
HH Judge Street
Our thoughts and prayers go out to Judge Sandy Street. In one of his rare findings in favour of migration applicants he has been overturned by a judge higher up the food chain.
Judge Sandy found that two Sri Lankan children included in a family visa application are not bound by the refusal of that application because, at the time of the decision, no litigation guardian had been appointed to represent them.
The family brought judicial review proceedings after their protection visa was knocked back by the department and the Immigration Assessment Authority. The two little Sri Lankans brought their own appeal to the court, which found favour with Judge Sandy.
The minister was having none of that and appealed to Stephen Burley J in the FCA, who found that the proceedings the Circus Court were an abuse of process and that Sandy needed to be well and truly overturned:
“More particularly, I accept that there is no requirement in the Migration Act that non-citizen children who seek judicial review of a migration decision must do so only through a litigation guardian. In this regard, the common law rule that an infant generally cannot take action except by a next friend or tutor may be considered to have been displaced by the language and scheme of the Migration Act; Dey at 83; Haines at 449–451.
These matters lead to the result that the primary judge erred in determining that the respondents were not parties to the earlier proceedings and were not bound by the result in those proceedings. They were so bound, with the consequence that the primary judge erred at in determining that the respondents were not properly joined. No conflict of interest has been identified.
Having regard to these matters, in my view the current proceedings constitute a re-litigation of the claims assessed and rejected by the IAA, which were subsequently the subject of judicial review and dismissed both in the FCCA and in this Court on appeal in the earlier proceedings.
Such circumstances have been recognised to be capable of amounting to an abuse of process, which the court has power prevent … ”
Let that be a warning to migration judges who have a momentary flutter with soft heartedness.
Levelling sideways
We turn to the Toy Town Kingdom of the ACT for another shocker. This one from Damien O’Donovan, a Deputy President of ART and at the time a Senior Member of the AAT.
Damien came to the tribunal after 22 years service at the AGS and was appointed by The Very Rev Christian Porter in the monumental pre-election tribunal stack of February 2019.
Even the Law Council complained about the invisible merits-based selection procedures.
Damien found that school teacher Gerard Ross suffered an incapacity for work which enabled him to collect compensation.
An appeal by the ACT government was allowed by consent. It was agreed that Ross did not have an incapacity for work as defined by the Safety Rehabilitation and Compensation Act.
Justice Jane Needham found O’Donovan failed to address whether Ross was incapacitated from working at the “same level” at which he previously worked.
This meant the tribunal failed to do what the legislation required and failed to “provide reasons to the standard required by law”.
There was plenty of material with which the tribunal could grapple, as evidenced by the fact that Ross accepts that he has no incapacity for work within the meaning of s.4(9) (b) of the SRC Act.
Australian Capital Territory v Ross
A fresh omnishambles
Poljak: case not at the marginsJustice Michael (Bing) Lee is never far from our thoughts. In this case the AAT’s Senior Member Adria Poljak was in HH’s thoughts.
She finished up at the AAT last month and returned to 12th floor Wentworth Chambers in Sydney to resume practice at the bar ‘n’ grill.
As a Senior Member Ms Poljak decided that Amana Community Services Pty Ltd was suitable to be an aged care provider.
The Aged Care Quality and Safety Commissioner disagreed, with Lee making scalding remarks in upholding the appeal.
It appears the tribunal didn’t get to grips with evidence that Amana’s accountant, Mr Baddour, who had been put forward as one of the “key personnel” in relation to the firm’s financial management, was no longer the CFO and no one had been appointed to replace him as head bean counter.
Lee J said this “is not a case at the margins” and the failure to address the evidence about the missing CFO was an error of law which means the tribunal’s decision does into the dust bin.
“Needless to say, this is a highly regrettable set of circumstances,” said the expert on the “Tigris and Euphrates Truth Defence“.
He didn’t think the omnishambles and significant delay in the case was the fault of Amana – which suggests it might be the fault of the AAT or the Commissioner.
In the circumstances, he was surprised to be presented with a 16-volume court book, “not to mention the number of other arguments advanced on appeal which I have found unnecessary to address …”
Aged Care Quality and Safety Commissioner v Amana Community Services Pty Ltd
Vlad impales
Judge Rolf Driver was close to retirement so to get the work done by deadline he pumped out some reasons with slabs of cut ‘n’ paste from the applicant’s submissions.
This turned out to be a dreadful outcome for Elizabeth Kelly, the former general manager of the Antagonistic Heartless law shop.
Elizabeth claims she was figuratively and financially impaled by the Golden Serb while running the day to day operations of his firm.
Evidence before Judge Rolf was distressing. The high-flying Vlad referred to Kelly as: “uncommercial and weird … a maliciously intermeddling fool … malign … lazy incompetent … a dull head.”
He repeatedly threatened to fire her and reduce her salary, referring to the “EMK disease” (in honour of Kelly’s initials) to reprimand underperforming employees, and referred to her “menstrual based cycles” in emails to other members of staff.
Two other partners at Atanaskovic Hartnell, Michael Sophocles and Tony Hartnell, chose not to raise Kelly’s complaints with Vlad because they thought it would have only made matters worse.
Vlad: grudges
One partner “had a practice of making a conscious decision to ignore rude and inappropriate comments” by Atanaskovic, for fear of the managing partner’s tendency to “denigrate” and hold “grudges” against anyone who challenged his authority.
Judge Driver awarded $30,000 in general damages to Kelly for hurt, humiliation and distress, on the basis that the law firm had breached an implied contractual obligation to prevent harm to its employees.
AH was also required to pay her accrued entitlements of $130,427.84, with the law firm’s cross claims being tossed out.
See: At the Vladitorium
On appeal, 19 months later, Justices Berna Collier, John Logan and Scott Goodman found that the trial judge imported into his reasons great slabs of submissions from Kelly’s counsel James Willis.
Their HHs probed at length whether the workmanship assisted by a pot of Perkins Paste would be fatal to the outcome. It was, because the judge too freely adopted the submissions of Ms Kelly without putting them through a fine sieve.
Berna Collier put it this way:
“Can it be said that the unattributed replication of Mrs Kelly’s submissions by the first primary judge in the Liability Judgment, to such a significant degree, was such that it should be inferred that his Honour did not make an independent decision on the whole of the evidence and the law before the Court? I am satisfied that such an inference can, and should, be drawn.”
Clearly, more skilful rearrangements of words and paragraphs are required for the reasons to pass muster – even if the applicant’s submissions were entirely persuasive.
Kelly’s file at the Circus was opened in 2017. The hearing started five years ago in 2019 and was heard in dribs and drabs in 2020 and 2021.
Rolf got out the paste pot in March 2022 and here we are looking at close to 10 years before the claim is reheard and wrapped up.
In the meantime, rolling costs are no object to the loveable Vlad.