UPDATE … Full Federal Court bounces another decision from Sandy Street in the Federal Circuit Court … Conduct of the hearing “fell short of what was desirable” … Unfairness generated by the court … Inadequate reasons in another review heard by Street required the full court to rehear the application … Nick Bonyhady reports
On this occasion the applicant was a Vietnamese man on Christmas Island seeking refugee status. He didn’t speak English and had only been given the government’s affidavit on the morning of the hearing.
In an ex tempore Judge Street affirmed an AAT decision denying the man’s application.
The AAT decided that the applicant’s claim he would be executed for his part in a bank fraud was “not real”, even though an Interpol notice from Vietnam explicitly mentioned the possibility of charges carrying the death penalty.
By failing to consider the applicant’s argument on that point, the Federal Court held that Street “did not actively engage with the argument before him” even though it was “obvious” from the evidence.
Last March it was reported that Street’s decisions had been overturned 47 times by the Federal Court, accompanied several times by stern criticism.
A 2015 analysis found that Justice Street’s list was dominated by migration matters, with the government winning more than 99 percent of the time.
HH does plough through an enormous number of cases and most of challenges to his reasons are dismissed on appeal.
However, BUD17 v Minister for Immigration highlights pitfalls in the speedster judgment stakes. The applicant repeatedly urged Judge Street to read the Interpol notice that the applicant relied on to show he was in danger of being executed.
The notice said that while the man’s co-accused had been sentenced to long jail terms (rather than death), the applicant was the “ringleader” of the fraud syndicate, and that if arrested, “issues will be considered again according to regulations”.
The AAT had relied on the sentences of the man’s co-accused to make the find that there was only a “remote” chance he would be sentenced to death.
According to the Full Federal Court, “the tribunal simply overlooked that material entirely”, which showed the government of Vietnam would likely reassess the charges against the applicant if he was arrested.
In a hearing via audio link (a video link had failed) from Christmas Island, where the applicant is held, Street quickly agreed with the AAT’s determination.
“If the primary judge had read the indictment (and for that matter the other material referred to above), he could not have helped but see the tribunal’s error.”
In addition, the appeal judges held that the way Street conducted the hearing “fell short of what was desirable”.
The judge did not tell the detainee he could have more time to read the affidavit on which the government relied, and he “shut the applicant out of making submissions on the law” when he attempted to do so.
The following exchange illustrates what Street took to be consent from the applicant, who was unrepresented and speaking through an interpreter:
In spite of the applicant’s lack of legal training this was enough for the judge to admit the government’s affidavit into evidence.
Neither happened.
Similarly, when the applicant tried to make submissions on a further government affidavit, Street ruled that they were subject to public interest immunity and told the applicant he would hear him on that point later on. He did not do so.
In Assistant Commissioner Condon v Pompano Pty Ltd, High Court Justice Stephen Gageler wrote:
“To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied … Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice.”
These words applied equally to the current case, the Federal Court said, especially given that the unfairness in this case was “generated by the court itself”.
Yikes.
Judge Street’s decision in BUD17 v Minister for Immigration
Full Federal Court decision in BUD17 v Minister for Immigration
More recently (September 6) the Full Federal Court turned down an appeal from Judge Street who had upheld a review of a decision by the Immigration Assessment Authority rejecting an application by an Hazara from Afghanistan who was seeking a safe haven enterprise visa.
Justices Berna Collier, Brigitte Markovic and Michael Lee in CIT17 v Minister for Immigration reviewed the findings of the authority and the decision of Street, substantially upholding one of the grounds of the appeal and rejecting two others.
They observed:
“The reasons given by his Honour for rejecting the appellant’s first ground of review were inadequate. Paragraphs [47]-[53] of the primary decision, which are clearly intended to set out the reasoning and findings of his Honour in respect of the first ground of review, evince no real explanation or process of reasoning as to why his Honour formed the view that the first ground was not substantiated.”
While his reasons were lacking in detail, the Full Court was not satisfied that Street failed “to engage with relevant submissions of the appellant”.
The full court concluded that because Street’s reasons were inadequate the appeal judges had to rehear the application for review, which wasted costs all around.
“However while the appellant has been substantially successful in respect of his first ground of appeal, we consider that the second and third grounds of appeal – which reagitate the original grounds of review – have not been substantiated. It follows that it would be futile to remit the proceedings to the Federal Circuit Court. The appropriate order is to dismiss the appeal.”
Each side to pay its own costs.
Full Federal Court in CIT17 v Minister for Immigration and Border Protection
See Justinian: