Federal Court’s Geoffrey Flick concerned about some of Judge Sandy Street’s decisions in the Federal Circuit Court  … Judge refused extensions of time for applicants, even where the minister consented …Flick flicks the cases to another judge … Start again … Kate Lilly reports 

JUDGE Sandy Street of the Federal Circuit Court has come under fire, once again, for summarily dismissing protection visa cases.  

The judge refused to grant time extensions in two cases and dismissed the proceedings without advance notice.

On Justice Geoffrey Flick has quashed both decisions for a lack of procedural fairness.  

In June Justinian reported that the Full Federal Court overturned two of Street’s rulings. 

AAV15 v Minister for Immigration and Border Protection concerned a Sri Lankan applicant who was unsuccessful in securing a Protection Class (XA) visa.

In March, the matter progressed from the Refugee Review Tribunal to the Federal Circuit Court.  

At the FCC, a time extension was required under s.477 of the Migration Act. On the first court date, the applicant supplied an affidavit, explaining that he was only made aware of the RRT’s decision on February 19 and had thereafter acted “without further delay”.  

On March 19, Judge Street refused to grant an extension and summarily dismissed the proceedings without advance notice. HH observed that “the applicant needs an extension of time in circumstances where the grounds are doomed to failure”. He went on to conclude there was “clearly no substance in the application for an extension of time under s 477″. 

In the Federal Court, Flick noted Street’s reasoning was a bit thin on the ground. He took particular issue with Street’s refusal of the time extension. Flick said it was proper for the judge to consider the applicant’s prospects of success (which he thought were slim) in coming to a decision on the extension. However, he pointed out that Street failed to go any further.   

Flick explained:

“In the present proceeding, it is difficult to discern the basis upon which the judge below proceeded … The difficulty is simply that such reasons as are provided by the Federal Circuit Court judge fail to engage with the explanation provided by the applicant for his apparent delay. No consideration was given to whether an extension of time should be granted and thereafter consideration given to whether the proceeding should summarily be dismissed … 

Where consideration is being given to competing applications – one being an application for an extension of time and the other an application to summarily dismiss a proceeding – it remains important for the basis upon which a court has proceeded to be clearly articulated and thereby exposed to scrutiny.”  

A bigger problem, in Flick’s eyes, was the lack of notice afforded to the applicant. Street refused the extension and dismissed proceedings of the first return date – something Flick described as “serious reason to pause”.

HH did concede that the applicant’s grounds of review “was clearly ‘doomed to fail'” by reason of a recent High Court decision (Minister for Immigration and Border Protection v WZAPN). Despite this, Flick found the applicant had been unfairly denied the opportunity to amend his case.    

HH concluded: 

“In the circumstances of the present case, it is regretfully concluded that the manner in which the Federal Circuit Court Judge proceeded was procedurally unfair . . . 

The orders were made on the first return date of the proceeding before the Federal Circuit Court, without prior notice to the parties, and notwithstanding the fact that those appearing for the Respondent Minister did not seek such orders.  The transcript of the proceeding, moreover, exposes no active consideration being given to the explanation provided by the Applicant for his apparent delay and certainly no opportunity extended to the Applicant to consider whether any amendment to the grounds of review then relied upon were under consideration or even possible on the available materials.”

On the same day, Flick overturned a second decision from Street in AEG15 v Minister for Immigration and Border Protection, for similar reasons.  

This case concerned another bid for a Protection Class (XA) visa. The applicant, a Pashtun Shia Muslim, also required a time extension. 

On the first court date, the Immigration Minister’s representative indicated he would consent to an extension of time being granted. 

Despite this, Street refused the extension and summarily dismissed the proceedings – without notice. The applicant wasn’t personally present in court.  

Subsequently, the minister’s solicitor filed a statement of support, conceding “that Judge Street erred in summarily dismissing the application for an extension of time of his own motion, at the first court date, and without notice to the applicant . . . and that to do so was procedurally unfair”.

In a brief judgment, Flick agreed: 

“The observations and conclusions set forth in AAV15 need not be repeated.

It is sufficient for present purposes to conclude that the concession of the respondent minister in the present proceeding that there has been a denial of procedural fairness is a concession properly made. The order refusing an extension of time made by the Federal Circuit Court judge in the present proceeding invites even more serious disquiet given the fact that the respondent minister before that court consented to the extension of time.

Both cases have been remitted to a differently constituted Federal Circuit Court for consideration.