00:53, August 22 315 0 theguardian.com

2019-08-22 00:53:04
Asylum case rejected by controversial judge Sandy Street will be reheard

A full bench of the federal court has ordered an asylum case rejected by the controversial circuit court judge Sandy Street to be reheard, adding further criticisms of his conduct and finding he failed to give procedural fairness to the Iranian asylum seeker.

The judgment by the chief justice James Allsop and justices Melissa Perry and Murray Gleeson said the man had no legal representation and no translator with him when he appeared via video link at his July 2018 hearing.

It also noted Street had instructed the interpreter not to translate his reasons, which he delivered verbally, and that he then did not publish them until 54 days after the man’s window to appeal closed.

In March justice Nye Perram rejected an application to have Street’s ruling put under judicial review, but was nonetheless critical of Street’s conduct.

On Wednesday the full bench sent the case back to the federal circuit court to be heard by a different judge, after it was asked by both parties to make orders by consent, under circumstances the judges said were “unusual and warrant an explanation”.

The judgment noted the federal government’s senior counsel had agreed that Street had failed to hear the case with procedural fairness.

It outlined that in Street’s hearing:

  • The Iranian man had no legal representation.

  • He appeared via video link from Western Australia while a translator was in a Sydney courtroom.

  • He raised concerns of unfairness at the time.

  • There was “real doubt” whether the man had been given the minister’s submissions, but Street said it was sufficient to just have them explained, and did not try to clarify what happened.

  • The man sought an adjournment to correct errors in his translated affidavit, but Street refused and admitted it unchanged into evidence.

  • Street delivered an ex tempore (verbal) judgment, and instructed the interpreter not to translate.

  • Street made no apparent effort to have his reasons written until they were requested.

  • The reasons were not published until 75 days after he delivered them, and 54 days after the expiry of the time within which an appeal could be lodged.

In the four years since Street was appointed by the then attorney general, George Brandis, more than 80 of his cases have been overturned. On Thursday the Australian reported that included at least 10 cases in which he denied procedural fairness. Street has also previously been found to have failed to properly try cases and give proper reasons.

The president of the Law Council of Australia, Arthur Moses SC, would not comment on the judge, but told Guardian Australia on Thursday that ensuring procedural fairness to someone party to court proceedings was “an essential element of the administration of justice in this country”.

“The Law Council has been concerned for some time that the conduct of some judicial officers of the federal circuit court detracts from the hard work undertaken by the majority of the judges of the … court,” Moses said.

“The overwhelming majority of judges of the federal circuit court work tirelessly to administer justice, despite a crushing workload in an under-resourced court.”

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The Law Council has previously said it was considering a series of judgments by Street.

Complaints about judges are dealt with through the federal court and the chief justice, but all aspects of a complaint, including the subject, documentation and any referral to the attorney general, are confidential. The process is exempt from freedom of information laws.

“For constitutional reasons, the participation of a judge in responding to a complaint is entirely voluntary,” the court’s website says.

“Nevertheless, it is accepted that a procedure for complaints can provide valuable feedback to the Court and to its judges.”

It says the complaints procedure cannot provide a mechanism for disciplining a judge.

“It does, however, offer a process by which complaints by a member of the public about judicial conduct can be brought to the attention of the Chief Justice and the judge concerned, and it provides an opportunity for a complaint to be dealt with in an appropriate manner.”