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

[2015] FCCA 2577

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCP v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2577

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – application for recusal – application dismissed.

Legislation:

The Constitution ss.73, 75(v)

Federal Court of Australia Act 1976
Federal Circuit Court Rules 2001 r.1.03

Migration Act 1958 (Cth), s.476

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
King v Blakely Ex Parte Association of Architects & Ors of Australia (1950) 82 CLR 54
Old UGC v IRC (2006) 225 CLR 274

Residual Assoc Group v Spalvins (2000) 202 CLR 629

Applicant: SZVCP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 142 of 2015

Judgment of: Judge Street

Hearing date: 15 September 2015

Date of Last Submission: 15 September 2015

Delivered at: Sydney

Delivered on: 15 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr P Hannan

Australian Government Solicitor

ORDERS

1. The application for recusal is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 142 of 2015

SZVCP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the applicant for the Court to recuse itself in relation to the proposed hearing that has been fixed for 2 December 2015 in respect of proceedings, PEG142 of 2015, PEG162 of 2015 and SYG3004 of 2014.  An application for the Court to disqualify itself on the basis of bias must be clearly made and strictly proven.  The applicant from the bar table has said he does not have confidence in the Court dealing with the matter with an open mind.

2. The applicant has complained that the Court has a track record and that there are matters that have come back from the Full Court of the Federal Court of Australia for further hearing.  The applicant said he was confounded by why the Court had made orders that did not require his physical presence when that had happened in other proceedings.  No other conduct was identified by the applicant. 

3. Part of the function of the exercise of judicial power is the delivery of reasons that both informs the parties as to why the power is exercised and also provides to the parties an opportunity to pursue their appellant rights.  The pursuit of appellate rights and the grant of appellate relief is not a basis upon which any fair-minded person might draw any inference as to a want of neutrality. 

4. In the area of exercise of jurisdiction under s.75(v) of the Constitution through s.476 of the Migration Act 1958 (Cth), it is necessary for applicants to make out a case of jurisdictional error by the Tribunal. The Court is not sitting at first instance hearing matters in its original jurisdiction as a de novo hearing, but rather it is exercising the same Constitutional jurisdiction in respect of relief under s.75(v) of the Constitution as is vested the High Court of Australia.

5. Statistics are not a basis upon which a fair-minded lay observer in relation to the area of jurisdictional error would form any belief as to a want of neutrality.  An alleged track record from past cases dealt with by the Full Court of the Federal Court of Australia or return of cases for further hearing does not prove any fact or conduct from which a fair-minded lay observer might reasonably fear a want of neutrality. Delivery of reasons and orders permitting the applicant to appear by video link rather than in person is also not conduct by reason of which a fair-minded lay observer might reasonably fear a want of neutrality.

6. The refusal in the case to require the applicant to appear in person is not a basis upon which a fair-minded lay observer might form the view that there was a want of neutrality.  The conduct identified by the applicant is not conduct in respect of which a fair-minded observer might reasonably apprehended that this Court might not bring an independent and impartial mind to the determination of the matter on its merits.

7. In the course of delivering the judgment, the applicant sought to raise further issues interrupting the delivery of the judgment of the Court. The Court does understand the applicant’s enthusiasm for presenting forcefully his case. But it is important that the applicant recognise the importance of complying with the authority of the Court and maintaining the dignity of the Court. The applicant foreshadowed in the course of the interruption that he would pursue his appellant rights. That is the matter in respect of which the exercise of judicial power by this Court is always subject to appellate review relevantly through s.24 of the Federal Court of Australia Act 1976 or through s.75(v) of the Constitution.

8. It was unfortunately necessary to direct the applicant to stop interrupting the Court whilst delivering these reasons for judgment.  However, the applicant did comply with the Court’s direction and at the end of the case offered an apology for the interruption. I regard the applicant’s interruptions as understandable in the context of the applicant’s sincere desire to press with force his case.  The direction for the applicant not to interrupt the Court in the delivery of judgment is also not conduct which a fair-minded person might regard as identifying a want of neutrality by the Court.  Such a direction is one necessary to preserve the authority of the Court and to maintain public confidence in the exercise of judicial power by independent Courts.

9. A fair-minded observer might not reasonably apprehend that this Court might not bring an independent and impartial mind to the determination of the matter on its merits because of the need to direct the applicant to stop interruptions during the course of the delivery of reasons.  It is for these reasons that the application for the Court to disqualify itself for bias have not proved.  The application for recusal is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 23 September 2015