ALA15 v Minister for Immigration

[2015] FCCA 2047

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2047

Catchwords:
PRACTICE AND PROCEDURE – Application for recusal – whether statistical analysis of Court’s previous decisions relevant – whether Court had a vehement or entrenched point of view – material not relevant to establishing bias – material does not satisfy the fair-minded observer test – application dismissed.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), s.476

Newcastle City v Lindsay [2004] NSWCA 198
Vietnam Veterans’ Association of Australia New South Wales Branch Inc. v Gallagher (1994) 52 FCR 34
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2001) 201 CLR 488
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Applicant: ALA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 994 of 2015

Judgment of: Judge Street

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Sydney

Delivered on: 29 July 2015

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Respondents:

Mr A Markus

Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application for recusal is dismissed.

3. The application for extension of time is refused under s.477.

4. To the extent that leave is required to amend the application in respect of the opposed ground 4, leave is granted.

5. The Applicant pay the First Respondent’s costs fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 994 of 2015

ALA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), and it involves an application in a case for the Court to recuse itself. The grounds of the application are apprehended bias, and are said to be based on past conduct as identified in an affidavit of Victor Alan Kline. Victor Alan Kline, as the editor of the Federal Court Reports and Federal Law Reports, has engaged in a statistical exercise identifying 286 decisions of this Court of which it is said 254 involved the area of migration law.

2. Mr Kline says that, of the 254 immigration cases, 252 of the applicants were unsuccessful and it identifies the statistic identifying that as being one of 0.79 per cent in respect of the 254 judgments identified by Mr Kline.  Mr Kline identified that there had been 163 of the 254 judgments dealt with on the first court date, and identified another statistic in that regard.  Mr Kline then referred to the remaining eight judges in the Sydney Registry over the same period having delivered 309 judgments, or a total of 54.89 percent in immigration judgments, while this Court had delivered 45.11 percent in that period.

3. Mr Kline identified a percentage based on an annual report of the Migration Review Tribunal decisions which were set aside and then that percentage was compared with the percentage identified by Mr Kline.  That was the whole of the conduct identified by the applicant in support of the application for recusal. 

4. There was a further affidavit read by the applicant that referred to Mr Kline’s affidavit, in which the applicant identified the number of cases that had been dealt with by this Court, and expressed a personal belief.  The material in the affidavit of Mr Kline and that of the applicant was admitted subject to relevance. 

5. Counsel for the applicant made this application at the commencement of the hearing that had been fixed as a result of orders made on 15 May 2015.  The affidavit of Mr Kline was filed on 28 July 2015 and the affidavit of the applicant in support of this application was filed on 29 July 2015 and submissions in support of the recusal application were filed on 29 July 2015. 

6. Applications for recusal should be made at the earliest possible time.  It is not consistent with the objects of the Federal Circuit Court Rules 2001 or the efficient administration of justice to have applications of this kind raised at the last minute, because it utilises valuable and limited Court time, particularly where a matter has been listed for final hearing. The Court only became aware of the application at the time of listing this afternoon.

7. That said, I accept that it is appropriate for the Court to deal with the application first before any further consideration or involvement in the matter the subject of these proceedings. The Court, at the commencement of the application, was careful to require counsel to identify precisely the conduct relied upon in support of the application. That conduct was identified as the conduct identified in the affidavit of Mr Kline.

8. The applicant's submissions went beyond the affidavit of Mr Kline and referred to alleged expressions used in other proceedings on the basis that those expressions could be characterised as a vehement or entrenched expression of view.  The expressions referred to were expressions appropriate for the application of principle in relation to the determination of the specific case on hand.  I do not accept that the language identified identifies a vehement or entrenched expression of view of the kind referred to in Newcastle City v Lindsay [2004] NSWCA 198. Further, there was no evidence in support of the alleged expressions, albeit summarised in the written submissions. Applications for bias must be squarely made and strictly proved. These expressions were not conduct relied upon and were not proved.

9. Insofar as the statistical analysis engaged in by Mr Kline, the evidence was admitted subject to relevance, consistent with the approach adopted by Heerey J in Vietnam Veterans’ Association of Australia New South Wales Branch Inc. v Gallagher (1994) 52 FCR 34 at 41 to 42.

10. The first respondent submitted that the application should not be acceded to, and that the material was not relevant.  For the reasons identified by Heerey J, I accept the first respondent’s submission that the statistical analysis is not material that is relevant to establishing conduct of a kind that can give rise to an application under Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2001) 201 CLR 488; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

11. The use of such statistical material is not evidence of conduct in respect of which a fair-minded observer might believe that the Court might not bring a fair, impartial, and independent mind to the determination of the matter on its merits.  The mischief that would be created by the use of this type of statistical analysis is obvious, and it does not provide any cogent or rational foundation to identify conduct to which the fair-minded observer test should be applied.  

12. Further, even if one applies the fair-minded observer test, the statistics and the expressions to which I have referred are not ones by reason of which a fair-minded observer might believe that the Court might not bring an independent and impartial mind to the determination of the matter on its merits.  The application for recusal is dismissed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 5 August 2015