By Dan Star QC -
Key decisions
- ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
- Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2016] FCAFC 42
- Foley v Gay [2016] FCA 273
Courts and Tribunals
Whether a statistical analysis of a judge’s previous decisions establishes bias
In ALA15 v Minister for Immigration and Border Protection [2015] FCCA 2047, Judge Street of the Federal Circuit Court of Australia (FCCA) refused to recuse himself from the applicant’s challenge to a decision of the Refugee Review Tribunal (RRT) which refused him a protection visa. His Honour also refused to extend time to enable the applicant to seek judicial review of the RRT’s decision.
The recusal application to the FCCA was supported by an affidavit of the current editor of the Federal Court Reports and the Federal Law Reports who deposed to having reviewed Judge Street’s judgments and found (according to the Full Court at [11]):
‘(a) He identified 286 decisions of Judge Street during the relevant period, of which 254, or 88.81% were in the area of immigration law where the Minister for Immigration and Border Protection was the respondent (immigration judgments).
(b) In all 254 or 100% of the immigration judgments, they were, or appeared to be, delivered ex tempore.
(c) Only in two of the 254 immigration judgments, or 0.79% of the immigration judgments, Judge Street found in favour of the applicant against the respondent Minister for Immigration and Border Protection.
(d) In 252 out of the 254 immigration judgments, or 99.21%, Judge Street found in favour of the respondent Minister for Immigration and Border Protection.
(e) There were only two judgments where the primary judge found in favour of the applicant. In . . . [one] the Minister for Immigration and Border Protection conceded that there was an error and in . . . [the other] there was jurisdictional error.
(f) In at least 163 of the 254 immigration judgments, or 64.96%, the immigration judgments were given at the first court date . . .
(h) The most recent Annual Report of the Migration Review Tribunal (MRT) – Refugee Review Tribunal (RRT) disclosed that 10.8% of MRT decisions and 12.2% of RRT decisions were set aside, compared with only 0.79% being set aside by the primary judge on judicial review.’
In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (10 March 2016) the applicant sought an extension of time and leave to appeal to the Federal Court. The questions before the Court were whether Judge Street denied procedural fairness to the applicant or fell into jurisdictional error by refusing to disqualify himself due to a reasonable apprehension of bias. The applicant contended that the statistical material should be attributed to the hypothetical observer without any further analysis or attempt to go behind the raw statistics and, if this approach was followed, apprehended bias would be made out.
The Full Court (Allsop CJ, Kenny and Griffiths JJ) rejected the applicant’s contentions for several reasons (at [38]-[46]). Among other reasons, the Full Court stated (at [41]) that ‘the mere fact that a particular judge has decided a number of cases, the facts and circumstances of which are unknown, one way rather than another, does not go any way to assisting the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge’. The Full Court cited with approval observations of Heerey J in Vietnam Veterans’ Association of Australia (New South Wales Branch Inc) v Gallagher [1994] FCA 489; (1994) 52 FCR 34 (at [26] and [31]).
