Australian Immigration Daily News

Exactly what does a statistical analysis of a judge's decisions mean? 

Suppose you knew that a particular judge of the Federal Circuit Court had ruled in favour of the Department 99.21% of the time (in 252 out of 254 cases).

What conclusions would you be likely to make if you saw that your client's judicial review application was listed before that judge? 

Would you have serious concerns about your client's prospects, knowing that applicants whose cases had been heard by the judge were virtually certain to lose? 

And is a judicial record of this kind sufficient to support a finding of “apprehended bias” that would enable you to force the judge to “recuse” (remove) himself from hearing your client's case? 

This last question was the subject of a recent decision by the Full Court, in the case of LA15 v Minister for Immigration and Border Protection (2016) FCAFC 30 (10 March 2016). 

In this case, an applicant for a protection visa sought to have Judge Alexander “Sandy” Street recuse himself based on statistical evidence of the kind referred to above.

An affidavit was prepared by the editor of the Australian Federal Court reports and Federal Law reports which deposed that, in fact, during the period from 1 January – 19 June 2015, Judge Street had ruled against applicants in all but 2 of the migration cases that came before him.

There was further evidence in the affidavit that all of the 254 judgements that had been handed down by Judge Street had been ex tempore – essentially meaning that they had been handed down from the bench and that Judge Street had apparently not “retired from the bench” to consider the matters in his chambers before handing down the decisions against the applicants.

And additionally, the affidavit deposed that in at least 163 out of the 254 immigration cases, the rulings against the applicants were given on the first court date.

 There was more statistical evidence that compared the set aside rates in cases before the MRT and the RRT with the outcomes in judicial review applications that came before Judge Street.  And this evidence, taken from the period from 2013 – 2014, showed that the set aside rate before the MRT had been 10.8%, and before the RRT, that the “success rate” had been 12.2%, compared to 0.79% before Judge Street.

So – was this a case where the Full Court decided according to that famous “maxim”: “If it looks like a duck, and swims (or quacks!) like a duck, it must be a duck!”? That “the statistics do not lie”?

That the compiled statistical history showing that over a specific period of time Judge Street had ruled almost universally (more than 99% of the time) against migration applicants meant necessarily that judicial review applicants could not get a fair hearing before Judge Street?

That's not what the Full Court concluded. That's right. The panel of the Full Court, composed of Chief Justice Allsop and Judges Kenny and Griffiths held that the statistical record did not support a finding of “apprehended bias”, and thus did not require Judge Street to recuse himself from hearing the case.

Exactly why did the Full Court reach this conclusion?

First, the Court observed that an allegation of “prejudgement” or “apprehended bias” is viewed as a serious matter, because it “carries with it the suggestion that the judge has failed to honour his or her judicial oath such as might be questioned by the fair-minded observer”.

Accordingly, when an application is made that a judge recuse her or himself from hearing a matter, the applicant faces what might be termed a “heavy burden” to prove the allegation – that proof of prejudgement must be “clear and distinct”.

The Full Court also noted that the standard for showing that “apprehended bias” exists, such that the judicial officer must recuse her or himself, is that “a fair minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair and impartial and independent mind to the determination of the matter on the merits”.

So why did the Full Court consider that the statistical evidence concerning the record of Judge Street's judgements in migration cases was not sufficient to show “apprehended bias”? Why wouldn't evidence that Judge Street had ruled against migration applicants more than 99% of the time cause a fair minded observer to think that His Honour might not be fair and impartial?

To start with, the Court reasoned that the “raw statistical material” was not enough, by itself, to show bias. It was the Court's view that the individual migration cases that had come before Judge Street would need to be carefully examined (in other words, each on its own merits) in order for the statistics to be placed in a proper context. The Court reasoned that such an analysis might show that many, and perhaps all, of the cases had been decided on a “reasonable and plausible basis”.

Next, the Court commented that, in its opinion, a comparison of raw statistics concerning the decisions by one particular judge with those made by other judges of the Federal Circuit Court or by members of the RRT-MRT does “not necessarily indicate prejudgement”. In this regard, the Full Court noted that just because it is easier to persuade one judge of a proposition than it is to persuade another of the same proposition does not mean that either is affected by bias.

What do you think of that point? Could the opposite conclusion reasonably be drawn – that when a judge rules one way nearly 100% of the time, there is at least the prospect that the judge is not approaching the matters with an unbiased mind? It's my own view that such a statistical record should at least create a substantial concern that is worthy of investigation.

The Court also took the view that the evidence concerning the higher statistical rate of “set asides” in the MRT and the RRT was “irrelevant” because those statistics came from a period before Judge Street was appointed to the bench of the Circuit Court.

I have to say that I don't personally follow why the stats from the RRT and MRT would not be relevant just because they came from a period before Judge Street's appointment. Don't these statistics which show set aside rates of about 10 % in the Tribunal at least suggest that some reasonable percentage of review applications have merit? And that therefore judicial findings that virtually no applications before the Circuit Court have merit at least raise some level of question about whether there might be some basis in fact for a finding of apprehended bias?

An additional reason why the Full Court found the statistical analysis to be irrelevant was that the cases that it surveyed covered a period ending on 19 June 2015, when the Full Court published reasons in the cases of and that were critical of Judge Street's practice of dismissing matters summarily on the first court date without prior notice to the applicant. The Court took the view that the circumstances in LA15 were different, in that the application at issue in the case was not disposed of by Judge Street on the first return date, and was made after Judge Street had considered the evidence and submissions made on the part of the applicant. 

In short, it seems that the Full Court was suggesting that what was required to show bias was that Judge Street had not changed his approach to dealing with migration cases, and that the same practices that had inspired the critical observations in had been continued.

So, now it's time for your thought and opinions!. Do you think that the Full Court decided this application correctly? Do you think that a fair minded person who knew that a judge had decided nearly 100% of migration cases adversely to the applicant would have reasonable cause for concern that the judge might not bring approach the cases without predisposition? When there is a record that shows that a judge has almost always ruled in a particular way, is it necessary to “drill down” into the particular circumstances of the cases to bring the decisions into context, and to truly understand whether there was any merit to the allegations of apprehended bias?

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.