CPF15 and Ors v Minister For Immigration and Anor (No.2)

[2018] FCCA 1163

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPF15 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 1163

Catchwords:
PRACTICE AND PROCEDURE – Further oral application for the Court to recuse itself – application in respect of two matters raised in earlier recusal judgment – oral application for recusal dismissed.

Cases cited:

CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1162

First Applicant: CPF15

Second Applicant: CPG15

Third Applicant: CPH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3293 of 2015

Judgment of: Judge Street

Hearing date: 9 May 2018

Date of Last Submission: 9 May 2018

Delivered at: Sydney

Delivered on: 9 May 2018

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: G&S Law

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The oral application for recusal is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3293 of 2015

CPF15

First Applicant

CPG15

Second Applicant

CPH15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a further oral application for the Court to recuse itself based on what are said to be two matters arising from the reasons of judgment that the Court has just delivered in CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1162i n refusing to recuse itself.

2. The first matter identified by Mr Young of counsel is the reference by the Court to the Court book that was put into evidence in support of the application currently before the Court. Mr Young was concerned that the reference to the question about speaking English had not been correctly summarised by the Court. Contrary to Mr Young’s submission, the Court correctly identified the reference to limited English at the time the Court gave its reasons. Further, the reference by this Court to question 12 at page 2 of the Court Book is not conduct by reason of which a fair minded lay observer might reasonably apprehend that this Court might not bring an independent impartial mind to the determination of the matter on its merits.

3. Mr Young also took the Court back to the reference in the learned Flick J’s reasons to the timing of the question about the need for an interpreter. As a fair minded lay observer will be aware, the need for an interpreter is a matter that has to be dealt with, at the commencement of the hearing.  In those circumstances, the timing 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.

4. The second matter which Mr Young relied was the Court addressing the criticisms in relation to an argument about procedural fairness that was not identified in the grounds of review. The Court identified what had occurred at the commencement of the hearing of which a fair minded lay observer being reasonably informed would be aware, where this Court had explained that it would consider whether there was a jurisdictional error and sought to explain that jurisdictional error. Having explained that jurisdictional error, the Court as it had explained it would, addressed both aspects of the potential jurisdictional error. That is not conduct by reason of which a fair minded lay observer might reasonably apprehend that this Court might not bring an independent and impartial mind to the determination of the matter on its merits.

5. Mr Young argued that this Court had in respect of those two matters, sought to justify the conduct in circumstances that would cause a fair minded lay observer to have an apprehension that this Court might not bring an independent and impartial mind to the determination of the matter on its merits.  Mr Young argued that the justification was conduct that gave rise to reasonable apprehension of bias.

6. This Court provided reasons in support of the determination of the action. Those reasons were not justification. Those reasons were reasons why this Court determined the application that was advanced. The Court maintains an open mind reasonably capable of persuasion as to the merits in relation to the applicant’s case which involves questions of law.

7. The oral application for recusal is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 May 2018