Karsten v Minister For Immigration and Anor (No.2)

[2015] FCCA 1784

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARSTEN v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 1784

Catchwords:
PRACTICE AND PROCEDURE – Application for recusal – apprehended bias – allowed by consent.

Shrestha v Migration Review Tribunal [2015] FCAFC 87

Applicant: CHRISTOPH HERMAN KARSTEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 316 of 2015

Judgment of: Judge Street

Hearing date: 29 June 2015

Date of Last Submission: 29 June 2015

Delivered at: Sydney

Delivered on: 29 June 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Hume

Solicitors for the Applicant: Christopher Levingston & Associates

Solicitors for the Respondents: Ms K. Hooper
DLA Piper

ORDERS

1. The hearing on 24 July 2015 at 9.30 am before Judge Street be vacated.

2. Order 6 of the Orders of Judge Street dated 4 May 2015 be vacated.

3. The matter be listed for hearing on a date and time to be advised, before a Judge to be advised and not to be Judge Street.

4. The Applicant must file and serve a written outline of submissions and any list of authorities 14 days before the final hearing.

5. The First Respondent must file and serve a written outline of submissions and any list of authorities 14 days before the final hearing.

6. Liberty is granted to the parties to apply to the Court for further directions on three clear days notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 316 of 2015

CHRISTOPH HERMAN KARSTEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for the Court to recuse itself on 27 May 2015 following the making of consent orders in an appeal to the Federal Court of Australia in which the decision of this Court made on 5 March 2015 was quashed.  The matter was remitted to this Court for determination according to law with a notation identifying the proposition that an error of law in the expert report that would give rise to a jurisdictional error by the Tribunal.  The court has been provided with proposed consent orders vacating the hearing date and allocation of this matter to another judge of this Court.

2. The matter was then the subject of orders made on 28 April 2015 fixing the matter for hearing on 29 July 2015.  Those orders were varied on 4 May 2015 and a fresh hearing date given for 24 July 2015. These case management steps were taken before the filing of the application for recusal.  Since the filing of that application, there has been delivered a decision, Shrestha v Migration Review Tribunal [2015] FCAFC 87, which the applicant says (at [79]) identifies grounds upon which a fair-minded person might believe that the Court might not bring an impartial and independent mind to the determination of the matter on its merits.

3. That decision referred to the particular circumstances of that case, in which there was no Court book and the relevant transcript alleged to be of significance in respect of the alleged grounds of jurisdictional error was not available to the applicant.  In this case, counsel for the applicant has pointed out that the expert report and Court book was not available to the applicant. Accordingly, it was submitted that the grounds of allocation on remitter to a different judge of this court as identified in Shrestha in terms of the might test by a fair minded observer as to a reasonable apprehension of bias have application in the present case.

4. An application for recusal for apprehended bias in respect of a party who is legally represented and who is aware of circumstances giving rise to a right to object should be made in a timely manner for reasons which include avoiding waste of Court resources and assisting efficient management of the Court’s business.  I am satisfied that the decision of Shrestha was not available to the parties and provides an adequate explanation in this case for any delay in bringing the application for recusal.

5. As a general principle a judge has a duty to hear matters allocated to that judge unless the interests of the administration of justice dictate otherwise. I am satisfied that in light of the application of the principles identified in Shrestha to this case the interests of the administration of justice dictate otherwise. In the above circumstances and where the Minister consents to proposed consent orders, it is appropriate for the Court to make the orders vacating a hearing date and to permit the matter to be listed before another judge of this Court.

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

Associate: 

Date:  30 June 2015