Australian Immigration Daily News

Wow. Just. Wow.

That was my initial reaction when I came upon this article on the ABC News Website last night that apparently prompted the article that was posted on the Migration Alliance blog by my colleague Jerry Gomez:

http://www.abc.net.au/news/2015-09-10/federal-court-judge-alexander-street-accused-of-bias/6764704

If you click on this link, you will see that there are two elements to this news story.

The first part of the article discusses the fact that Judge Alexander Street of the Federal Circuit Court of Australia has been accused of “apprehended bias” due to claims that His Honour has rejected migration appeals in 252 of 254 cases that came before him during the period between January and June 2015.  Of course, that works out to a “success rate” of well under 1%.  The article indicates that in an application that was filed before the Full Court last week, an affidavit was prepared by the editor of the Federal Court Reports (Victor Kline) which lays out these statistics.  It would appear from the article that the purpose of this application in the Full Court is to seek reversal of a decision by Judge Street.

If any readers of the Migration Alliance blog are involved in this litigation, I would invite you to provide details of the proceedings in the “comments” section of this posting if you are in a position to do so: I am certain that it would be of great interest to RMAs and migration lawyers to learn more about what is happening in that case. 

The second part of the article refers to a decision by the Full Court  in the case of SZWBH v Minister for Immigration and Border Protection (2015) FCAFC 88 (19 June 2015) which allowed an appeal against Judge Street’s decision to dismiss an application for judicial review at the first court date.  The Full Court held that Judge Street’s actions in dismissing the appeal had deprived the applicant of his right to procedural fairness. 

The details of the case were as follows: The applicant for judicial review was an ethnic Tamil from Sir Lanka. He had applied for a protection visa in 2012. That application was refused by a Departmental officer in 2013. The applicant then challenged the refusal of his application before the Refugee Review Tribunal (as it then was called). However, the RRT affirmed the refusal of the application. An application was then made for judicial review of the application. These proceedings came before Judge Street for the first time on 26 February 2015. 

It is interesting to note that the applicant prepared his application for judicial review to the Federal Circuit Court on his own, without the assistance of a lawyer.  Nonetheless, the application (as described in the Full Court’s written judgment) appears to advance a claim of “jurisdictional error” – an alleged failure on the part of the RRT to consider a “relevant matter”.  The application claimed: 

“The RRT has failed to evaluate, consider and make a finding in respect of one of my central claims that I am at risk of harm due to my cousin and her husband being shot by the Army and the abduction of my aunt and subsequent problems for me. This claim expresses and implies that I would be harmed by the Sri Lankan authorities. 

The RRT has failed to assess and consider that the one of my central claims cumulatively and with my race and as a failed Tamil asylum seeker on my arrival would place me at risk….” 

This certainly sounds like an allegation of jurisdictional error that would be worthy of careful consideration in the context of judicial review proceedings, doesn’t it? 

Well, this is what actually happened: The case came before Judge Street on the morning of 26 February 2015, at 10:10 a.m. The applicant appeared before the Court without a lawyer – he was assisted only by an interpreter. Judge Street then expressed concerns that the application, in His Honour’s view, did not appear to “properly identify any jurisdictional error”. Judge Street announced that he was “minded to consider whether your application should be summarily dismissed now”.  His Honour then invited the applicant to articulate the grounds on which there had been jurisdictional error by the RRT. In reply, the applicant said, through the interpreter: 

“I described to the Department of Immigration that my younger brother, younger sister and her husband were killed. I also submitted that certificates relevant to those killings and I put forward a claim stating that because of those incidents the police will be targeting me as I was seen as being opposed to the police……I have certain doubts whether the tribunal delved into an inquiry as to (why) my younger brother was killed.”

It certainly sounds like the applicant articulated both that he had a fear of persecution (and thus an arguable claim for a protection visa) and possible grounds for a finding of jurisdictional error (that the RRT had failed to consider a relevant matter) – doesn’t it?

At this stage of the hearing on 26 February, a solicitor who was present in Court on behalf of the Department sought to be heard. She cautioned Judge Street against the summary (immediate) dismissal of the judicial review application, in view of the fact that the only materials that Judge Street had before him consisted of the application for judicial review, the Department’s initial response to that application and the decision of the RRT. The solicitor said, quite fairly and accurately, that it could well become clear as the judicial review proceedings unfolded that there would be a basis for a finding to be made that the RRT had committed jurisdictional error. She said:

“..whilst I readily appreciate that your Honour may be disposed to deal with the matter this morning…..it is the case in these matters that they are not always what they seem and while the ultimate conclusion may be very well correct that there is no jurisdictional error, often times one does actually have to go through the working out, if you like, in order to still come to that conclusion”.  

Nonetheless, and even though the applicant had not been given any notice that his application for judicial review might be “thrown out” by the Court,  Judge Street proceeded to immediately dismiss the application for judicial review and made an order for costs against the applicant.

The proceedings before Judge Street were concluded by 10:40, so in the space of around a half an hour, the application for judicial review had (at least so far as the Federal Circuit Court level was concerned) had been dealt with and determined adversely to the asylum-seeker/applicant!!

Even though the Full Court used “understated”, “judicial” language in its written judgment overturning the dismissal of the judicial review application, reading between the lines it is not hard to form the impression that the Full Court was “appalled” that Judge Street had dismissed the application.  The following extracts from the judgment are quite telling:

“…where a party is legally represented, for a judge to proceed of his or her own motion and without notice, to dismiss a judicial review proceeding summarily at the first return date, is likely to be an unfair process and inconsistent with the proper exercise of judicial power. …For a judge to proceed in that manner against a party who is an unrepresented Tamil asylum seeker is….”anathema to…the Constitution”. (emphasis added)

The Full Court was especially troubled by the fact that the applicant had not been given notice that his application might be dealt with and might be dismissed on the day of the first return. It said:

“In circumstances where an applicant is unrepresented, to deal with a matter on short notice may….be procedurally unfair, especially if there are communication and language difficulties.  Notice is fundamental to a fair process in a court: in an adversarial system, it allows parties time to prepare, to meet what is to be put against them, to understand and consider the significance of what is proposed to occur, and be in a position to present evidence and argument if they wish.” 

In my opinion, especially in view of the fact that there is a world-wide refugee crisis, it should be obvious as day that an asylum-seeker’s application for judicial review in the Federal courts should be entitled to every procedural safeguard, and should be given a full and fair hearing. Hopefully, in the wake of the Full Court’s decision, the type of unfair summary dismissal that occurred in the SZWBH case will not occur again!

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837