SZUON v Minister for Immigration and Border Protection

[2018] FCA 705

FEDERAL COURT OF AUSTRALIA

SZUON v Minister for Immigration and Border Protection [2018] FCA 705

Appeal from:

SZUON v Minister for Immigration & Anor [2016] FCCA 2462

File number:

NSD 1883 of 2016

Judge:

RANGIAH  J

Date of judgment:

8 May 2018

Catchwords:

PRACTICE AND PROCEDURE – application for judge’s recusal – application dismissed

Cases cited:

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

Minister for Immigration and Multicultural Affairs v Jia Legang (2001) 205 CLR 507

Date of hearing:

8 May 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

10

Counsel for the Applicant:

Mr J Williams

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

EX TEMPORE REASONS FOR JUDGMENT

NSD 1883 of 2016

BETWEEN:

SZUON

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

RANGIAH J:

1. The applicant’s counsel has asked me to recuse myself from hearing the application for an extension of time to file a notice of appeal. 

2. At the commencement of the hearing, the applicant’s counsel applied for leave to rely upon a proposed amended notice of appeal.  It raised a ground not mentioned in the original.  The first respondent opposed the application. 

3. Upon examining the proposed amended notice of appeal, I suggested that it read more as submissions than a notice of appeal.  I asked the applicant’s counsel to identify the relevant rules relating to notices of appeal.  Counsel did not do so, but submitted that the grounds were adequately and appropriately described.  I suggested that the grounds did not allege error on the part of the primary judge.  That was an issue raised by the first respondent in its written submissions.  Counsel for the applicant submitted that the ground was clear for all to see. 

4. Counsel for the applicant has submitted that I should recuse myself because of my “raised voice”, my “attacks” on him and failure to allow him to finish his submissions.

5. I did raise my voice, but that was in response to counsel’s own raised voice, that he was talking over the top of me and spoke in what I considered to be a rather flippant and, at times, sarcastic manner. 

6. I did interrupt counsel at times, but that was in response to submissions that failed to address my questions or were unnecessary.  One example is that I interrupted counsel to say that it was unnecessary to read aloud particulars from the notice of appeal, as I could read them for myself.  My interruptions were in an attempt to get answers to seriously-asked questions.

7. I did not attack counsel, as he alleges.  I queried the drafting of the proposed amended notice of appeal and whether it complied with the rules.  I queried whether the grounds alleged any error on the part of the primary judge.  That was not, and could not reasonably be construed as, an attack on counsel. 

8. I did criticise the tone and manner of counsel, but I consider that criticism to be justified.  It does not affect, and could not reasonably be seen as, affecting my judgement of the issues in the application.

9. I do not think that a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the issues I am required to decide:  see, for example, Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; Minister for Immigration and Multicultural Affairs v Jia Legang (2001) 205 CLR 507 at [99], [134]-[135], [183]-[185], [280].

10. I therefore refuse the application to recuse myself.  I note that, in the absence of the applicant’s attendance at the hearing, it is not apparent that counsel had instructions to make such an application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:        

Dated:        23 May 2018