Thom Thoms
Word on the street is that ace bloodhound Vivienne Thom has been appointed by the Federal Court to sniff out any dicey judicial behaviour.
We’re told she’s seeking to interview old associates about their experiences in chambers and the corridors of the FCA.
In late breaking developments, the court confirms that Dr Thom “has been engaged to investigate a complaint made by a former staff member against a former judge”.
A guessing game is now underway.
“The investigation will include a review of the relevant court policies and processes from both the time period of the allegations as well as current day practices.”
The court spokesperson adds:
“To avoid uninformed speculation, the allegations do not involve any elements of sexual harassment.”
Ms Thom, a former Controller of the Royal Australian Mint and an ex-Inspector-General of Intelligence and Security, did the work for the High Court that found Dicey Heydon was a repeat sexual harassment offender.
She also reviewed ASIC’s governance following the upset over relocation expenses for the chairman James Shipton and deputy chair Daniel Crennan KC.
And she has oversight of the Department of Defence response to the Afghanistan Inquiry.
Dim the lights … cut
There has been a longstanding FCA practice of hiring professional videographers to record ceremonial sittings for broadcast on the court’s YouTube channel.
But since Debbie Mortimer has taken the helm many of the broadcasts seemed to have hit the cutting room floor – particularly the farewells.
The last footage of a farewell was for John Middleton who departed in December 2022.
You can see it here with Chuckles Allsop bumbling his way through the introductions …
These pocket-moistening occasions are only eclipsed in dullness by silk bows ceremonies which are still available online in all their eye-glazing monotony.
Since Middleton’s departure there have been six judicial retirements not broadcast on YouTube: Chuckles (06/04/23), Farrell – who can forget? (01/08/23), Rares (15/11/23), Kenny (29/01/23), Thomas (31/01/24 and Besanko (07/05/24).
Since Mortimer was appointed CJ [ceremony here], there have been seven appointments to the court. Following Justinian’s inquiry about the video policy, we’re told that from now on all future recordings will be made available on the court’s channel.
Another victory for pomp and ceremony.
The chief justice has yet to post a speech, apart from ceremonial boilerplate stuff and she is yet to conduct a media interview.
The Executive Director People, Culture and Communication at the court is former Home Affairs wallah Jimmy Mastorakos.
Tribunal’s slash and burn under review
Unhappy visa applicants who have been knocked back by Senior Member Rebecca Bellamy in the AAT are pursuing judicial review applications in the Federal Court.
Senior Member Bellamy: Federal Court reviewWe had the solemn duty last month to report Bellamy’s reasons in Alovale Junior Leo’o Olo and Minister where she scolded the lawyers for making money “from non-citizens who are desperate to avoid deportation” and wasting the tribunal’s time.
The applicant and his witness also were roundly criticised for trying to manipulate the tribunal with evidence that was not credible.
The case was so futile and without merit that the applicant should not have exercised his right to a merits review. He should have accepted the decision of the minister’s delegate, packed his bags and decamped to New Zealand.
The judicial review application gives some detail about Bellamy’s conduct during the hearing, giving rise to an apprehension of bias indicative of prejudgement of the factual and legal issues, including:
• Rolling of eyes and smirking while witnesses gave evidence;
• Questioning witness in a manner that was “objectively rude, insensitive and/or dismissive”.
Video of the hearing is in evidence.
Bellamy claimed that Leo’o Ola’s criminal record requires him to be sent back to NZ, which is “not a country that is poor, unstable, war torn, barbaric or oppressive”.
It is submitted that this implies NZ citizens are less deserving of the AAT exercising a discretion in their favour because Aotearoa is such a nice place.
Bellamy SM did not want to “waste time and tribunal resources” by “addressing each and every disingenuous utterance made on the applicant’s behalf”.
If an appeal was brought she thought it would “create an opportunity” for the Federal Court to provide clarity on “the extent to which the tribunal is required to engage with material that is obviously lacking in merit”.
This rather ignores the requirement that the tribunal is obliged to engage in an active intellectual process with clearly expressed representations.
The application argues that the decision to uphold the minister’s cancellation of the visa is vitiated on grounds of denial of procedural fairness; making illogical and legally unreasonable adverse credibility findings about the applicant and his witnesses; improperly applying a relevant ministerial direction; with insufficient evidence to make the determination.
Here’s the opportunity Bellamy wanted for some clarify for the Federales.
Judicial review application in Leo’o Ola
≈ ≈ ≈
LLQQ v Minister is another of Rebecca Bellamy’s tribunal cases where the applicant failed the character test and his visa cancellation upheld.
It too is the subject of a judicial review application. In both Leo’o Olo and LLQQ the applicant was represented by well-known migration barrister Dr Jason Donnelly.
Kirbs with Jason Donnelly
It is claimed that Bellamy’s findings in LLQQ are infected by apprehended bias because she prejudged the applicant’s position; negatively framed the primary considerations; inappropriately commented on the testimony of witnesses; had a dismissive attitude; was ignorant of the law; and failed to advise the applicant of his right against self-incrimination.
Among the selected quotes from Bellamy we find:
“So, you’re starting from a pretty bad position because you have committed lots of offences.” This was said at the start of the contested hearing, suggesting that things got off in a prejudicial fashion based solely on the applicant’s criminal history.
To one witness she asked:
“And did you ever call [the applicant] a slut because he was having underaged sex too?” – this too is cited as suggestive of a lack of objectivity.
“So I guess when I decide how long you were in the community before you started committing offences, I would have to pretend that you only started in 2022” – indicative of an unwillingness to consider the full context of the applicant’s case.
LLQQ is Iranian, aged 20, from the Arab-speaking Ahwazi region of Iran. Along with his family he came to Australia on a boat in October 2012. The boat nearly sank which traumatised the applicant to the extent that he has never recovered from the trauma.
The family remain in Australia on bridging visas – all their efforts to obtain protection visas having failed. Bellamy said:
“It is not apparent why they have not yet been removed to Iran.”
The government says they are on a “removal pathway”.