Rulings of Judge Alexander “Sandy” Street have been subject to several appeals in two recent cases in the Full Federal Court, which has strongly criticised the newly appointed Federal Circuit Court judge.
In a highly unusual move, applicants have presented statistics to support their allegation that those seeking a judicial review of migration decisions had virtually no chance of succeeding in Judge Street’s court between January and June this year.
In the latest application, filed last week in the Full Federal Court, the editor of the Federal Court Reports, Victor Kline, has sworn an affidavit which alleges Judge Street found in favour of the Immigration Minister in virtually every case he heard between January and June this year.
Of 254 rulings delivered, Judge Street rejected migration appeals in 252 cases.
According to the statistics, the judge dismissed a large number of cases at the first court date, which is usually set aside for laying down a timetable for gathering evidence and scheduling a hearing.
Monash University law professor Matthew Groves said such analysis of an individual judge’s rulings was rarely seen in Australian courts.
“The very fact that they were collected is unusual, and the stats themselves are quite unusual because they show that for migration hearings, essentially you’ve got no prospect of succeeding in front of this particular judge,” Professor Groves said.
The judge hails from the well-known Street legal family, which has produced three NSW chief justices.
Judge Street’s father, Sir Laurence Street, served as NSW Chief Justice between 1974 and 1988.
Judge Street was appointed to the Federal Circuit Court in late December last year by Commonwealth Attorney-General George Brandis.
He was the subject of media attention in the year prior to his appointment when it was revealed he was carrying hundreds of thousands of dollars in debt and faced possible bankruptcy.
In his time on the Federal Circuit Court, Judge Street has heard an astonishing number of cases.
Between January and June this year, he delivered rulings in 286 cases. The other eight judges who sit on the Federal Circuit Court in Sydney delivered 357 cases combined.
Judge subject of criticism over Tamil asylum seeker case
Judge Street has been the subject of pointed criticism in two successful appeals of his decisions in the Full Federal Court in which the judge was found to have denied litigants procedural fairness.
In one case, an unrepresented Tamil asylum seeker told Judge Street that his younger brother, younger sister and her husband had been killed in Sri Lanka.
“The police will be targeting me as I was seen as being opposed to the police,” the Tamil man told Judge Street.
“I plead to this court that I have come here to seek refuge and protection, and therefore, I urge this court to grant me protection and allow me to stay in this country.”
When we’re dealing with a case that involves the refugee issue, I think [procedural fairness] is even more important because often these people are unrepresented, they can’t speak English, they don’t understand any of the issues that are involved.Former NSW Supreme Court judge Anthony Whealy
In response, the judge asked the Tamil man to identify why there was a jurisdictional error in his case.
In that case, lawyers for the Immigration Minister had cautioned against the summary dismissal of the Tamil man’s case, stressing the duty of the Minister to put evidence before the court.
The man’s immigration file had not yet been obtained. But the judge did not accept the Minister’s counsel’s entreaties, summarily dismissing the case with costs.
The Full Federal Court took a dim view of the judge’s approach when it ruled the case should go back before a different judge to be re-heard in the Federal Circuit Court.
“Serious issues relating to the procedural fairness of proceedings must arise in circumstances such as the present, in which an unrepresented applicant whose primary language is not English … is called on, without notice, to mount arguments resisting the summary dismissal of his application,” judges Mansfield, Tracey and Mortimer said.
“These circumstances, or ones similar to them, should not occur again.”
Former NSW Supreme Court judge Anthony Whealy said the comments from the Full Federal Court were notable.
Mr Whealy said it was essential that courts offer procedural fairness, most particularly in migration cases.
“When we’re dealing with a case that involves the refugee issue, I think it’s even more important because often these people are unrepresented, they can’t speak English, they don’t understand any of the issues that are involved,” Mr Whealy said.
“It’s terribly important that they be allowed to prepare their case.”