CMU16 v Minister for Immigration

[2017] FCCA 1944

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1944

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – Application for recusal – whether the Court took on the role of contradictor – not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits – application for recusal dismissed.

Applicant: CMU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2417 of 2016

Judgment of: Judge Street

Hearing date: 16 August 2017

Date of Last Submission: 16 August 2017

Delivered at: Sydney

Delivered on: 16 August 2017

REPRESENTATION

Counsel for the Applicant: Mr A Silva on a direct access basis.

Solicitors for the Respondents: Mr L Dennis
MinterEllison

ORDERS

1. The application for recusal is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2417 of 2016

CMU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application of disqualification for recusal of the Court advanced by the applicant in the course of submissions in respect of Ground 1 by Mr Silva of counsel. Mr Silva has identified the conduct of the Court as being the taking of the role of a contradictor and/or taking on the role of the first respondent.

2. Mr Silva has submitted that the conduct includes not raising positive points in the course of the hearing to date on behalf of the applicant. Mr Silva submits that the conduct includes raising points in relation to the submissions put that he says engages in a want of impartiality by the Court. The transcript will reveal that the Court has sought to clarify with Mr Silva, in relation to Ground 1, the basis for each of the arguments he has sought to develop relating to the findings in relation to credit made by the Tribunal on particular matters not being open.

3. It is a fundamental feature of a hearing that the Court is entitled to understand the nature of the arguments that are being developed and why. The Court has not taken on any role of a contradictor. The Court maintains an open mind, reasonably capable of persuasion, in relation to each of the grounds that are advanced. The Court is entitled to explore with counsel for a party advancing an argument the issues so that the Court can understand the argument.

4. It is the case that Mr Silva has put on written submissions which the Court has read. The Court has read the transcripts, as well as the material that has been filed. The Court has not adopted a role of representing another party or descended into the arena or taken on the role of a contradictor. The conduct of the Court in asking counsel questions about the submissions being put is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits.

5. The application for recusal is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  24 October 2017