EQU19 v Minister for Immigration

[2020] FCCA 584

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQU19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 584

Catchwords:
PRACTICE & PROCEDURE – Application in a case for recusal – oral application for an adjournment – whether a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent impartial mind to the determination of the matter on its merits – oral application for an adjournment refused – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: EQU19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3055 of 2019

Judgment of: Judge Street

Hearing date: 16 March 2020

Date of Last Submission: 16 March 2020

Delivered at: Sydney

Delivered on: 16 March 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application in a case filed on 12 March 2020 is dismissed.

2. The applicant’s application for an adjournment is refused.

DATE OF ORDER: 16 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3055 of 2019

EQU19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal made on 8 November 2019 affirming the decision of a delegate of the first respondent not to grant the applicant a Protection visa.

2. The proceedings in this Court were commenced on 22 November 2019. The applicant is in detention. On 18 December 2019, this Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application as well as affidavit evidence and has put on submissions, including submissions in reply. On 12 March 2020, the applicant also filed an application for this Court to recuse itself.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and that the Court would first determine the application for recusal.

4. The application for recusal is based on an affidavit by the applicant that refers to media articles concerning this Court. The affidavit is admitted subject to relevance.

5. Media articles and/or statistics are not a basis upon which a Court should ordinarily recuse itself. The applicant was concerned, from the media articles, that this Court would predetermine his matter and that he would have no real prospect of success.

6. The conduct identified in respect of the media articles 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.

7. Further, the assumptions made by the applicant in relation to the accuracy of the truth of the content in those media articles is also one that has not been established.

8. There is no identified reason why this Court would do other than approach the determination of this matter with an open mind, reasonably capable of persuasion as to the merits. No proper case has been made out for this Court to recuse itself.

9. This Court has a duty to hear the matters that come before it. The recusal application was also opposed by the first respondent.

10. In the course of advancing the recusal application orally, the applicant also indicated that he wanted an adjournment because he had been in detention and had been seeking to obtain lawyers. The applicant submitted that he believed he was now in a position where he could provide funds for a lawyer.

11. These are proceedings which were commenced in November 2019. The Court accepts the first respondent’s submission that the applicant has had ample opportunity to obtain a lawyer if he is, in fact, able to do so. There is no evidence before the Court in relation to the applicant’s position having now changed financially in that regard. In all the circumstances, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.

1. For these reasons, the Court makes the following orders.

I certify that the preceding twelve (12) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 March 2020 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 5 June 2020