Pressure at the Federal Circuit Court sees judge gallivanting through migration and refugee cases at breakneck speed … Briefs are revolting … Masses of judgments delivered ex tempore in favour of the immigration minister … Appeals and recusal applications
Sandy Street has been judging at the Sydney branch of the Federal Circus Court since the beginning of this year and the howls from administrative lawyers have been getting louder each day.
HH is accused of delivering ex temp judgments too rapidly for the briefs who appear for people seeking to overturn decisions by the Refugee and the Migration Review Tribunals.
Victor Kline, the editor of the Federal Court Reports and the Federal Law Reports, surveyed Judge Street’s output and arrived at the following findings:
The first court date is usually regarded as procedural, to set timetables and have a preliminary exploration of the issues.
Kline provided his affidavits in a case called Ratu Pio Tikovakayalewa Kautoga where the applicant was seeking a review of an MRT decision. Counsel for Kautoga asked Judge Street to recuse himself on the grounds of actual or apprehended bias. This was rejected by his HH, with these reasons.
There was a clash between the judge and counsel at the first court date in Kautoga, as the transcript shows.
Shortly after Judge Street’s decision in the recusal application, the minister and the applicant agreed to consent orders to set aside the MRT decision, with costs.
Parties attended a hearing before Street on June 17 where they pleaded with the judge to grant the orders. This was ultimately achieved after several short adjournments.
In the recusal submission, the applicant contended that in the only case Kline found that went in favour of the applicant, ABT15 v Minister for Immigration, the minister accepted that the tribunal had made a finding that was infected by error.
In SZLCZ v Minister for Immigration, HH dismissed an application even though the minister had provided consent orders setting aside the decision under review.
In ADQ15 v Minister for Immigration, there was argy-bargy between barrister and bench after the judge said he had formed the view that there was no substance to the ground being put forward, directed counsel to move on and then directed him to sit down.
The recusal submission said that HH’s judgments are “characterised by the use of forceful phrases, which give an appearance of absolute certainty”.
In 140 cases the judge used the phrase, “no substance” and in 160 cases he said, “it is clear”. On many occasions, counsel say, the judge stands while dismissing applications and making orders.
In Kautoga, the applicant contended that the timetable set by the judge left insufficient time for counsel to confer with his client held in detention, to consider the evidence, or the minister’s submissions.
“The applicant contends that his honour’s conduct in relation to the present case is consistent with his honour’s approach to the other 212 migration applications which have been dismissed on an ex tempore basis; namely, that his honour is predisposed to the view that applications in migration matters are without merit and may be dealt with with extreme expedition, without the need for the usual interlocutory process.”
The judge says he’s running a busy list that requires the assistance of counsel, solicitors and applicants.
In the meantime, the Full Feds have issued orders in SZWBH v Minister for Immigration with reasons to follow.
Mansfield, Tracey and Mortimer JJ allowed the appeal, set aside Street’s orders and remitted the proceedings to a differently constituted FCC to be determined according to law.
It is expected that the reasons will show that the original decision was infected by jurisdictional error.
Legal snouts are out of joint with growing grumbles about bias.
Undoubtedly, there are many cases brought as delaying tactics by people who are not genuine refugees. At least that’s what the government tell us. It would be good to see from judicial reasons the extent to which this is so.