SZVCP v Minister for Immigration
[2016] FCCA 950
•26 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCP v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 950 |
| Catchwords: MIGRATION – application for recusal – no basis for believing that a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial mind to the determination of the matter on its merits – application dismissed. |
| Cases cited: SZVCP v Minister for Immigration & Border Protection & Anor [2016] FCAFC 24 |
| Applicant: | SZVCP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3004 of 2014 PEG 261 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 26 April 2016 |
| Date of Last Submission: | 26 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2016 |
REPRESENTATION
| The applicant appeared in person via videolink |
| Solicitors for the First Respondent: | Ms L Buchanan Australian Government Solicitors |
ORDERS
The application for disqualification is dismissed.
The question of costs of the application for disqualification is reserved.
The matter be stood over for directions on 26 July 2016 at 9:30 am.
Liberty to apply on 3 days’ notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3004 of 2014
PEG 261 of 2015
PEG142 of 2015
| SZVCP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the applicant in three proceedings for the Court to disqualify itself. On 18 March 2016, the matter was brought back before the Court following orders that had been made by the Full Court of the Federal Court in SZVCP v Minister for Immigration & Border Protection & Anor [2016] FCAFC 24. Those orders remitted the matter to the Federal Circuit Court, and the Acting Chief Judge of the Federal Circuit Court identified that the matter should remain in the docket of this Court.
On 18 March 2016, the applicant identified that he wished the Court to disqualify itself and asserted that he did not have any confidence in the Court, and relevantly said, “I am not going to have you hear my cases”. The Court identified to the applicant that it was willing to fix the matter for hearing of the disqualification application and to give the applicant an opportunity to put on affidavit evidence and submissions. On 18 March 2016, the matter was fixed for the hearing of the disqualification application today.
The applicant did not take advantage of the opportunity to file any affidavit evidence and has not put on any written submissions. Written submissions have been filed by the first respondent. In order to ensure that the applicant had a fair opportunity to develop the case that he wished to advance as to the alleged want of neutrality by the Court, the Court permitted the tender of the transcript of the hearing that took place on 15 September 2015 as well as the transcript of what occurred on 18 March 2016.
The conduct identified by the applicant orally upon which his application is advanced appears first to be the hearing of his interlocutory matter on 15 September by this Court. This Court was sitting as the relief roster judge in Perth. There was no other Federal Circuit judge sitting in Perth at that time. The applicant was in detention. The applicant had filed an application which, amongst other things, sought the transfer of the proceedings from the Perth to the Adelaide registry or the Sydney registry.
The applicant’s application filed in the proceedings in Perth identified that there were other proceedings on foot by the applicant. It is the ordinary practice of this Court to ensure that where there are multiple applications by the same party or overlapping subject matter, that they are heard efficiently and ordinarily by the same judge. Steps were taken on 15 September 2015 to identify whether there was any objection from the judge in Sydney with the matter being the subject of consolidation and heard in due course by this Court.
That step was identified in the transcript before the applicant in the conduct of the hearing on 15 September 2015. It is not for the Court to pick and choose litigants. It is the duty of the Court to exercise the judicial power of the Commonwealth in respect of controversies that come before it with an open mind capable of persuasion. Where there are multiple controversies involving the same parties, it is in the interests of the administration of justice that those multiple matters are, if possible, heard at the same time. This avoids inefficient use of Court resources in multiplicity of proceedings as well as inconsistent findings.
There is nothing about the Court hearing the applicant’s interlocutory application that is conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial and independent mind to the determination of the matter on its merits. To the extent that the applicant was unsuccessful in the application for injunctive relief before the Court on 15 September 2015, that was an interlocutory application, and the judgment that was delivered by the Court was one following having identified that the Court had read the applicant’s evidence and the Court had given the applicant an opportunity to advance submissions.
In the course of the judgment, the applicant interrupted the Court on several occasions. It was in those circumstances that the judgment was more curtailed than it might otherwise have been. However, all the Court was determining on that occasion was whether on the material before the Court there was a prima facie case consistent with the principles in relation to an interlocutory injunction to warrant restraining the Minister in the manner identified in the applicant’s application from going back to a particular location.
The adverse orders in relation to the applicant’s interlocutory application 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 in the respective proceedings. The applicant expressed concern as to the process by which the proceedings were listed to be heard before the same Court. As identified earlier, that is the ordinary practice of the Court to permit multiple matters to be dealt with before the same judge.
Nothing in relation to that listing of the matters or future proposed concurrent hearing of the matters is conduct that identifies any want of neutrality or any want by this Court of an open mind capable of persuasion in relation to the substantive applications of the applicant or, indeed, in relation to any interlocutory applications of the applicant. The applicant suggested that what had occurred was that there had been shopping by the Court for the applicant’s case. That is a baseless and utterly unfounded submission and has no substance.
As I indicated earlier, it is not for the Court to pick and choose its litigants any more than it is for litigants to seek to dictate to the Court who will or will not hear their case. The assertion by the applicant that he will not have the Court hear his case is a potential defiance of the authority of the Court. That said, I put to one side the applicant’s conduct in that regard because I understand the applicant is in detention and the Court is alive to the fact that the applicant is keen to ensure that his applications are properly and fully heard. That, understandably, imposes some stress upon the applicant, and it is for that reason that I treat his submission as being of a more measured content rather than a contempt of the Court.
The applicant made reference to the decision of the Full Court, and in particular asserted that this Court had made findings of fact and law. Those submissions were misconceived. It is clear from the decision of the Full Court of the Federal Court that an application was made that the matter be remitted to a judge other than the judge that heard these proceedings in respect of the interlocutory applications in Perth. The joint judgment identified:
We see no basis for such an order.
It is in those circumstances that there is nothing in the content of the reasons of the Full Court that can be said to be 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 has taken into account the authorities referred to by the first respondent in their submissions.
The Court remains entirely neutral in respect of the applicant’s claims and still has an open mind capable of persuasion in respect of the determination of the applicant’s substantive and interlocutory applications. The applicant is highly articulate, extremely intelligent and well capable of developing the submissions or argument he wishes to develop. Nothing said by the applicant identified any conduct that would justify this Court not complying with its duty to hear the matters that are currently before it. The application for recusal is denied.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 5 May 2016
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