The first interlocutory judgment
24 In the first judgment Judge Street dismissed the application for recusal. According to the reasons for judgment, and there is no other evidence, the first conduct identified by counsel as a basis for the application was the conduct of the hearing at first instance, Judge Street asking whether the applicant required an interpreter, and the refusal of an adjournment. The second conduct was the order made on 16 April 2018 fixing the matter for hearing on 9 May 2018.
25 The reasons state, at [5], that Flick J gave consideration to the conduct of the hearing by the Federal Circuit Court but no order was made by the Federal Court that the matter be remitted to a differently constituted Federal Circuit Court. Before me, counsel for the appellants accepted that the appellants did not before Flick J seek an order that the matter be remitted to the Federal Circuit Court differently constituted.
26 At [7], Judge Street said that a finding of appellable error was not of itself, conduct by reason of which a fair-minded lay observer might reasonably apprehend that he, Judge Street, might not bring an independent and impartial mind to the determination of the matter on its merits (reasonable apprehension of bias) if it was remitted to the Federal Circuit Court for rehearing.
27 Judge Street said:
[8] Mr Young of counsel in the present case took the Court first to the criticism that was raised at the commencement of the reasons of the learned Flick J as to the question asked of the applicant at the hearing, whether she needed an interpreter, given that she came to Australia in 2008 on a student visa. The applicant responded yes, and an interpreter was sworn. The application for a protection visa in question 12 at page 2 of the Court Book, of which a fair-minded lay observer would be aware, identified a question: "which languages do you speak, read or write (including English)?["] In response to the language Nepalese, the applicant ticked speak, read and write and in response to the language English the word "(limited)" was inserted and, speak, read and write was ticked.
28 Judge Street then said, at [9], that a fair-minded lay observer would be aware that the first appellant had filed an affidavit in English which was not the subject of any identification of the use of an interpreter. In these circumstances, his conduct in asking whether the first appellant required an interpreter was not conduct which gave rise to a reasonable apprehension of bias.
29 Counsel took Judge Street to the reasons of Flick J and to the conclusion that the refusal of the adjournment effectively denied the appellants an opportunity to be heard. In that regard, Judge Street said that Flick J identified the reasons that had been provided for the refusal of the adjournment, and found those reasons to be inaccurate, and made reference to what occurred at the commencement of the hearing, and to the proposition that the first appellant was having difficulties understanding and making meaningful submissions with respect to her application, and that she wanted to secure the services of a barrister.
30 Judge Street then referred to Flick J also taking into account the absence of reference in that regard to the circumstances in which orders were made in chambers vacating the callover and fixing the matter for hearing, and the inadequacy of the reasons in relation to the expressed want of utility in the granting of an adjournment in the reasons of the Federal Circuit Court. Judge Street continued as follows at [11]:
A fair-minded lay observer reasonably informed, would be aware that the practices in relation to the listing of matters in this Court differs between judges. A fair-minded lay observer would be aware that some judges in the Court rather than list out years into the future, place matters into callovers with the intention of either dealing with the matter earlier or dealing with the matter, if needs be, at the callover. A fixing of the matter for a callover would not be regarded by the fair-minded lay observer as a matter that entrenches an entitlement to an applicant to have a callover date. The making of orders in chambers vacating the callover date and fixing the matter for hearing is 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.
31 At [13], Judge Street again said that a finding of appellable error was not of itself conduct which gave rise to a reasonable apprehension of bias.
32 At [14], Judge Street referred to counsel's making reference to the observations by Flick J in relation to the listing of the matter for hearing, the circumstances in which the matter was unilaterally vacated, that no enquiry was made to the first appellant as to her representation at the time of the fixing of the matter for hearing, as well as the absence of an explanation in relation to that history. Judge Street said that the absence of an explanation in relation to the history involved in fixing the matter for a callover was not conduct which gave rise to a reasonable apprehension of bias. Judge Street referred again, at [15], to there being liberty to apply.
33 At [16], Judge Street said that the failure of his reasons to address the arguments put by the appellants and the factual basis upon which those arguments were to be resolved and the reasons for rejecting those arguments in the manner identified by Flick J was not conduct which gave rise to a reasonable apprehension of bias.
34 For similar reasons, at [17], Judge Street said, in relation to the finding by Flick J that his failure to provide adequate reasons in support of the adverse determination, the existence of appellable error in relation to that adverse determination of grounds 1, 2 and 3 was not of itself, conduct which gave rise to a reasonable apprehension of bias.
35 Judge Street said that the issue involving whether jurisdictional error was made out was in substance a question of law and reflected either an excess of statutory power or a denial of procedural fairness. The adverse finding in relation to the grounds was not an adverse finding in relation to the credit of the appellants by him, but was rather a determination of the argument as the Court had then addressed it.
36 At [19], Judge Street said that the fact that Flick J held that he did not adequately address the arguments was not conduct which gave rise to a reasonable apprehension of bias.
37 Next, at [22], Judge Street rejected the apprehended bias claim founded on fixing the matter for hearing. Judge Street said that at the time the matter was fixed for hearing, more than 28 days had expired since the delivery of the reasons of Flick J on 16 March 2018. The Federal Circuit Court had a duty to attend to orders made by a superior Court, and the fixing of the matter for hearing by the order made on 16 April 2018 was not conduct which gave rise to a reasonable apprehension of bias. Further, an independent lay observer being reasonably informed would be aware that there was in place liberty to apply in respect of the order that had been made by earlier orders both of the Registrars and of the Court which could be exercised in respect of the order made.
38 In written submissions to this Court, counsel for the appellants submitted that [9] of Judge Street's first interlocutory judgment, suggested as a matter of which a fair-minded observer would have awareness, Judge Street effectively responded, himself, to criticism of Flick J at [30] concerning Judge Street's conduct which might be seen as putting the first appellant "on the back foot" from the outset by making adverse comment about her need for an interpreter. Quite startlingly, counsel for the appellants submitted, Judge Street at [8] referred to a box ticked by the first appellant where the first appellant had answered that she spoke, read or wrote English (limited) as justification for the course his Honour took which had been criticised by Flick J. It was all the more startling, counsel submitted, because it had not been the subject of any submissions included by the first respondent. It was certainly not something which could possibly be reasonably suggested as knowledge of a fair-minded observer. It was plainly Judge Street's own research to justify prior conduct which had been criticised. Similarly, the submission continued, at [11] Judge Street attempted to justify his earlier conduct in vacating the callover and fixing the matter for hearing.
39 However, more broadly, it was submitted on behalf of the appellants that Judge Street should have recused himself given the tenor and substance of Flick J's judgment. Judge Street at [4] emphasised that no order was made by Flick J that the Federal Circuit Court be differently constituted. It was however implicit, the submission went, in the criticisms of Flick J at [30] of his judgment (coupled with the dismissal by Judge Street of the grounds advanced by reference to "generic principles of general application rather than by reference to the particular facts presented" and the absence of reasons) that it was not appropriate for Judge Street to hear the case at all.
40 Further, Judge Street had immediately after Flick J's decision both assigned the case to himself, it was submitted, and fixed it at very short notice without giving the appellants any opportunity to be heard.
41 The grounds of the application remained the same as Judge Street had, in four peremptory paragraphs, summarily dismissed in language which, it was submitted, appeared to go beyond any connection with the grounds or go close to justifying the decision on the facts.
42 A fair-minded lay observer might reasonably apprehend, the submission went, that Judge Street might not bring an impartial and unprejudiced mind to the resolution of those very same questions which Judge Street again gave it to himself to decide.
43 The respondent Minister submitted that Judge Street considered the context in which the conduct occurred from the perspective of the reasonably informed fair-minded lay observer. Judge Street concluded that such an observer might not reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits: at [8]-[19]. Judge Street found that the fixing of the matter for hearing promptly, almost a month after the making of orders of the Federal Court and almost two months after remittal, was not conduct which gave rise to a reasonable apprehension of bias: at [23]-[24].
44 The Minister submitted that the appellants' grounds five to seven, which sought the recusal of Judge Street on the basis of apprehended bias, mischaracterised his Honour's reasoning. Justice Flick did not find that the exchange regarding the interpreter was capable of amounting to a reasonable apprehension of bias on the part of Judge Street. Any claim that the conduct of Judge Street was collectively capable of amounting to this was expressly abandoned by the appellants in the Federal Court proceedings: see [21] of the judgment of Flick J. Far from trying to justify the conduct that was impugned in the judgment of Flick J, Judge Street accepted that he had committed appellable error in the manner articulated. He did so expressly at [19]. However, it was submitted, Judge Street considered that appellable error did not equate to a mind that was closed to persuasion. This was undoubtedly correct. Were this not the case, it was submitted, matters remitted for inadequate reasons would always be allocated to a different judge. That was not the practice. There had been cases in which this Court had determined that certain matters ought to be determined by a different judge and made orders accordingly. However, no such order was made in the present case.