DPM16 v Minister for Immigration

[2016] FCCA 3200

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPM16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3200

Catchwords:
MIGRATION – Application for recusal – whether this Court should disqualify itself based on reasonable apprehension of bias test – no impartiality identified – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Applicant: DPM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3323 of 2016

Judgment of: Judge Street

Hearing date: 9 December 2016

Date of Last Submission: 9 December 2016

Delivered at: Sydney

Delivered on: 9 December 2016

REPRESENTATION

Counsel for the Applicant: Mr B Zipser on a direct access basis

Solicitors for the Respondents: Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

1. The application in a case is dismissed.

2. Whether any costs order is to be made in respect of the Applicant’s application in a case is reserved.

3. The First Respondent is to file and serve an electronic copy and the Court Book on or before 27 January 2017.

4. The Applicant is to file and serve any amended application and affidavit evidence on or before 16 February 2017.

5. The First Respondent is to file and serve any affidavit evidence in answer on or before 24 February 2017.

6. The Applicant is to file and serve any submissions on which the Applicant wishes to rely on or before 14 March 2017.

7. First Respondent is to file and serve submissions on or before 20 March 2017.

8. The matter is fixed for hearing at 9:30am on 23 March 2017.

9. Court vacates the directions hearing listed on 16 March 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3323 of 2016

DPM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Recusal application

1. This is an application in a case in respect of a matter commenced in this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 9 November 2016. The applicant is a Sri Lankan Tamil of Catholic religion from a particular province, and the Authority’s decision relates to an application for a protection visa by the applicant.

2. The applicant has filed an application for the Court to recuse itself and identified in that regard material that was the subject of a decision of the Full Court of the Federal Court of Australia in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30. This Court is bound by that decision. That decision identified that the matters referred to by the applicant in the applicant’s affidavit relating to statistics are not admissible on the grounds of relevance and are not material by which a reasonable apprehension of bias could be made out.

3. The applicant has also referred to three other cases involving Tamils.  Counsel on behalf of the applicant has properly conceded that there is nothing on the face of those decisions that support conduct meeting the reasonable apprehension of bias test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

4. Where an application for disqualification is advanced, the first matter that must be considered is the identification of the conduct by reason of which there is suggested to be a basis upon which the Court would not determine the matter in accordance with its merits. Nothing in the applicant’s affidavit identifies any conduct by reason of which there is any logical basis upon which it could be said that this Court would depart from a determination in the matter otherwise than on its merits. 

5. The determination of other cases in which this Court has delivered published reasons are 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 Court retains a mind open to and reasonably capable of persuasion in relation to the issues raised by the applicant in the applicant’s application. Mr Zipser of Counsel drew attention to the fact that his client suffers from a particular post-traumatic stress disorder and is desirous of having another judge hear the matter. 

6. It is a fundamental principle in relation to the impartial determination of cases that parties are not in a position where they can pick their judge any more than the judge picks the parties. Courts have a duty to discharge in hearing the cases that come before Court. It is also an important principle that judges should not lightly disqualify themselves in the performance of the duty to hear cases before the Court.

7. There is nothing identified in the applicant’s affidavit that warrants this Court disqualifying itself from hearing the application that the applicant has filed in the originating proceedings.

8. The application in a case is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 December 2016