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

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPF15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1162

Catchwords:
PRACTICE AND PROCEDURE – Application in a case for recusal – whether the Court’s conduct in respect of the hearing at first instance and the fixing of the matter for hearing on 16 April 2018 amounted to conduct by 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 the merits – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.15.27

Cases cited:

CPF15 v Minister for Immigration and Border Protection [2018] FCA 330

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

The application for recusal under ground 1 of the application in a case 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

This is an application in a case for the Court to recuse itself based on two identified aspects of conduct. The first conduct identified by Mr Young of counsel was the conduct of the hearing at first instance. The second conduct identified by Mr Young was the order made on 16 April 2018 fixing the matter for hearing today.
In relation to the history of the matter the proceedings were commenced on 3 December 2015 seeking a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 November 2015 affirming the decision of the delegate not to grant the applicants protection visas. The first applicant is the mother of the third applicant, and the wife of the second applicant.
On 11 February 2016 orders were made by a Registrar of the Court appointing the first applicant as the litigation guardian of the third applicant, and providing the applicants with an opportunity to file affidavit evidence and an amended application by 17 March 2016. The matter was listed for callover on 13 October 2016 and orders were made in a form that provided for written submissions and a list of authorities to be filed 14 days before the hearing by the applicants, and seven days before the hearing by the first respondent. A general order was made granting liberty to apply. That liberty to apply order has not been vacated by any order made by thep Court.
On 10 October 2016 a Registrar made further orders setting the matter down for a callover on 24 July at 9:30am. That order also included liberty to apply which has not been vacated by any order made by the Court. Following the making of the order setting the matter down for a callover, this Court made orders on 4 April 2017 fixing the matter for hearing, vacating the callover date, and making an express order for liberty to apply on two days’ notice. That order by this Court in respect of liberty to apply on two days’ notice has not been vacated. The matter came before this Court for hearing on 21 July 2017, and this Court made orders dismissing the application and ordering the first and second applicants to pay the first respondent’s costs. The Court delivered reasons ex tempore in support of those orders.
The matter was taken on appeal and the learned Flick J allowed the appeal, and made orders remitting the matter back to the Federal Circuit Court for reconsideration in accordance with law. The learned Flick J gave consideration to the conduct of the hearing by this Court but no order was made that the matter be remitted to a differently constituted Court.
In relation to considering an application for recusal, the Court has a duty to hear matters, and should not lightly find that the Court should recuse itself. There is no issue in the present case in relation to the test to be applied in respect of the reasonably informed fair-minded lay observer and the double-minded test.
This Court provided reasons in support of the orders made at the earlier hearing. Part of the purpose of those reasons is to permit an appellant Court to determine whether there has been appellable error. A finding of appellable error is not of itself, 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 if it is remitted to the lower Court for rehearing.
Mr Young of counsel in the present case took the Court first to the criticism that was raised at the commencement of the reasons of the learned Flick J as to the question asked of the applicant at the hearing, whether she needed an interpreter, given that she came to Australia in 2008 on a student visa. The applicant responded yes, and an interpreter was sworn. The application for a protection visa in question 12 at page 2 of the Court Book, of which a fair-minded lay observer would be aware, identified a question: “which languages do you speak, read or write (including English)? In response to the language Nepalese, the applicant ticked speak, read and write and in response to the language English the word “(limited)” was inserted and, speak, read and write was ticked.
In support of the originating process that was filed, an affidavit was filed by the first applicant in English with no identification of the use of any interpreter in the swearing of that affidavit or the affidavit read in support of the interlocutory application in a case: see r 15.27(1) and (2) of the Federal Circuit Court Rules 2001. A fair-minded lay observer would be aware that the first applicant had filed an affidavit in English which was not the subject of any identification of the use of an interpreter. In these circumstances, the conduct of the Court in asking whether the applicant required an interpreter 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.
Mr Young of counsel advised that the conduct of the hearing involved a denial of procedural fairness, and took the Court to the reasoning of the learned Flick J at [21] in CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 noting that there was uncertainty as to the manner in which the argument as to denial of procedural fairness was being advanced before the Court. Mr Young identified the argument being advanced, and referred to at [22], that there was a denial of the opportunity to be heard. Mr Young took the Court to the exchange in relation to the hearing, and the adjournment application at [25] of the learned appellant Judge’s reasons. Mr Young took the Court to [27] in CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 and the conclusion that the refusal of the adjournment effectively denied the applicants an opportunity to be heard. In that regard, the learned Flick J identified the reasons that had been provided for the refusal of the adjournment, and found those reasons to be inaccurate, and made reference to what occurred at the commencement of the hearing, and to the proposition that the first applicant was having difficulties understanding and making meaningful submissions with respect to her application, and that she wanted to secure the services of a barrister.
The learned appellant judge also took into account the absence of reference in that regard to the circumstances in which orders were made in chambers vacating the callover and fixing the matter for hearing, and the inadequacy of the reasons in relation to the expressed want of utility in the granting of an adjournment in the reasons of this Court. A fair-minded lay observer reasonably informed, would be aware that the practices in relation to the listing of matters in this Court differs between judges. A fair-minded lay observer would be aware that some judges in the Court rather than list out years into the future, place matters into callovers with the intention of either dealing with the matter earlier or dealing with the matter, if needs be, at the callover. A fixing of the matter for a callover would not be regarded by the fair-minded lay observer as a matter that entrenches an entitlement to an applicant to have a callover date. The making of orders in chambers vacating the callover date and fixing the matter for hearing 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.
The fair-minded lay observer being reasonably informed in the present case would be aware that the Sydney courts assist other judges in the Sydney Registry and that includes taking matters in callovers and also includes matters that have been fixed for hearing and bringing those matters on for earlier hearing before this Court. 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 a determination of the matter on its merits.
The finding in the present case that there was a denial of the opportunity to be heard amounting to a denial to procedural fairness is the finding of appellable error. For the reasons earlier given, a finding of appellable error is not of itself 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. Equally, the inadequate reasoning by this Court in support of the adjournment application, and the failure to address the merits of a particular circumstances in the present case at the time of the adjournment application whilst reflecting error 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.
Mr Young of counsel made reference to the observations by the learned Flick J in relation to the listing of the matter for hearing, the circumstances in which the matter was unilaterally vacated, that no enquiry was made to the first applicant as to her representation at the time of the fixing the matter for hearing, as well as the absence of an explanation in relation to that history. The absence of an explanation in relation to the history involved in fixing the matter for a callover 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.
Further, in circumstances where an informed lay observer was aware that there was liberty to apply, and taking into account the matters I have earlier referred to, the unilateral vacating of the callover date and the fixing of the matter for hearing where liberty to apply orders is in place whether there are in place liberty to apply orders 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.
Mr Young also took the Court to [32] of the learned Flick J’s reasons in relation to the legal error found in this Court’s reasons. That legal error identified a failure to focus on the arguments, and the factual basis upon which those arguments were to be resolved and the reasons for rejecting those arguments. The failure of this Court’s reasons to address those arguments in the manner identified by the learned Flick J 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.
Mr Young also focused upon the three grounds that have been the subject of alleged jurisdictional error and that this Court had found that those alleged grounds had not been made out, and subsequently referred to the substance of the reasons of the Court as set out in [12] of the decision of the learned Flick J. This is in substance no more than a repetition of the same error that has earlier been identified being the failure of this Court to provide adequate reasons in support of the adverse determination of grounds 1, 2 and 3. The existence of appellable error in relation to that adverse determination is not of itself, 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.
Mr Young contended that the adverse findings meant that this Court could not approach the re-hearing with an open mind reasonably capable of persuasion as to the merits because the Court had already expressed an adverse finding on the very grounds the subject of alleged jurisdictional error by the Tribunal. The issue involving whether jurisdictional error is made out is in substance a question of law and reflects either an excess of statutory power or a denial of procedural fairness. The adverse finding in relation to the grounds was not an adverse finding in relation to the credit of the applicants by this Court, but was rather a determination of the argument as the Court had then addressed it.
It is apparent for the reasons identified by the learned Flick J in CPF15 v Minister for Immigration and Border Protection [2018] FCA 330, that this Court did not adequately address the arguments and in those circumstances, this 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.
There was one other criticism upon which Mr Young focused in respect of the conduct of the hearing and that related to the reference by this Court to the proposition that there had been no denial of procedural fairness in circumstances were no grounds of review raised any such argument. A fair-minded lay observer being reasonably informed would be aware that at the commencement of the hearing, the Court had endeavoured to ensure that the applicants understood the nature of the hearing, and gave a summarised description of what constitutes jurisdictional error by first referring to such an error as being one involving an excess of statutory power or denial of procedural fairness, and, secondly, seeking to summarise for the applicants that description into simpler language being one that the Court was considering whether the Tribunal’s decision was unlawful or unfair.
A fair-minded lay observer would take into account that the Court having identified that it would consider that process in the course of its reasons would expect, and understand and regard as reasonable that the Court would in fact address what it had explained at the outset, regardless of whether or not the grounds, themselves, addressed both matters. The reference to there being no denial of procedural fairness 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.
The next conduct relied upon by Mr Young of counsel was the fixing of this matter for hearing. At the time this matter was fixed for hearing, more than 28 days had expired since the delivery of the reasons of the learned Flick J. This Court has a duty to attend to orders made by a superior Court, and the fixing of the matter for hearing by the order made on 16 April 2018 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. Further, an independent lay observer being reasonably informed would be aware that there was in place liberty to apply in respect of the order that had been made by earlier orders both of the Registrars and of this Court which could be exercised in respect of the order made.
The only application in a case that has been put on is one on 30 April 2018. That application in a case, was listed today on the date of hearing due to the workload of this Court. 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. Further, a fair-minded lay observer would be well aware that persons in detention regularly have their matters heard and determined within four to six weeks, which is obviously desirable where someone’s liberty is at stake.
These are proceedings that were commenced in December 2015. The fixing of the matter for hearing promptly, almost a month after the making of the order by this Court, and providing almost two months after the order by Flick J, 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.
The Court is not satisfied that this is an appropriate matter on which to recuse itself. Accordingly, the application for a recusal under ground 1 of the application in a case is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 May 2018