Applicants are accusing Judge Alexander ‘Sandy’ Street of the Federal Circuit Court of apprehended bias when hearing migration matters.
In a highly unusual move, applicants have filed statistics showing that Judge Street found in favour of the Immigration Department in 252 out of 254 cases over the last 6 months.
This meant that he found just 0.79% of cases in favour of migration applicants. This is well below the average of 10 to 12% in favour of applicants by other Federal Court Circuit judges sitting in Sydney.
Applicants are arguing that the statistics create an apprehension of bias, with those who come before him feeling that they have virtually no chance of success.
Who is ‘Sandy’ Street?
Alexander ‘Sandy’ Street comes from one of the most wealthy and famous legal families in Australia. His father, Sir Laurence, grandfather and great-grandfather were all Chief Justices of NSW.
Long before his appointment as a judge in December 2014, Mr Street had achieved the title of SC, or ‘Senior Counsel’. However, he received a substantial amount of unwanted media attention for his personal issues, including his less than amicable divorce.
During those proceedings, Mr Street told the NSW Supreme Court that he could not afford to repay his debts – which included a $240,000 tax debt, credit card bills, child support payments, rent and a car loan. He said that he had borrowed a large amount of money in 2006 when struggling to pay the mortgage on a six-bedroom Vaucluse mansion, but could not repay that loan despite it being given to him on an interest-free basis.
Attorney General George Brandis appointed Mr Street as a judge despite the fact that he was close to bankruptcy.
What is Apprehended Bias?
Apprehended bias is when a decision-maker such as a judge appears to be biased. It does not require proof of actually bias, but rather a perception that the judge is partial in certain types of cases, or in respect of certain people or groups.
The rule against bias is an essential pillar of natural justice. It is designed to ensure that judges approach matters free from prejudgment and prejudice, and that the public has confidence in the judicial system.
The case of Johnson v Johnson (2000) 201 CLR 488 found that the test for apprehended bias is whether:
“a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
If this test is satisfied, the judge must disqualify themselves from the case. It is also grounds to set aside the decision of a judge.
Criticism Over Street’s Migration Decisions
Over the past six months, Judge Street delivered rulings in an astonishing 286 cases. The other eight judges on Sydney’s Federal Circuit Court delivered a total of 357 decisions between them. Mr Street had multiple decisions overturned by the Federal Court, often accompanied by harsh criticism about his misapplication of the law.
In SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, Justices Mansfield, Tracey and Mortimer overturned Mr Street’s decision to summarily dismiss an application from a Tamil asylum seeker.
Under section 17A of the Federal Circuit Court of Australia Act 1999 (Cth), judges are allowed to give a summary judgment if the applicant has “no reasonable prospect” of success. This means that the case must be “hopeless” or “bound to fail”. When there is a summary judgment, the parties do not even get the chance to have their full case heard. It is a mechanism designed to ensure that the court is not wasting resources on cases that are doomed to failure.
But in the case of SZWBH, the Federal Court found that Judge Street was completely in error because there were significant facts that were still being disputed between the applicant and the Immigration Department. These included the applicant’s highly relevant claim that his brother, sister and her husband had been murdered in Sri Lanka. The applicant was unrepresented, and through a translator told Judge Street he would be targeted by police in Sri Lanka if he returned.
The Full Bench of the Federal Court delivered a judgement which was scathing in its criticism of Street, finding that:
“Serious issues relating to the procedural fairness of proceedings must arise in circumstances such as the present… These circumstances, or ones similar to them, should not occur again.”
Judge Flick overturned two other cases heard by Street; namely AAV15 v Minister for Immigration and Border Protection [2015] FCA 700 (10 July 2015) and AEG15 v Minister for Immigration and Border Protection [2015] FCA 702 (10 July 2015). Both were sent back to the Federal Circuit Court to be heard again by a different judge.
Street’s seemingly nonchalant attitude towards criticism by other, more senior judges, and dismissive attitude towards the cases – and lives – of others, raises very real questions about whether he should be a judge at all – despite his impeccable pedigree.
