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The fraying of judicial nerves in migration cases



Australian governments and judges have been playing catch up for a long time trying to deal with the backlog of claims for migrant visas. A couple of recent judgments highlight the frustration at work in the system.

Main image: Statue of Themis (Stella Vogt/Pixabay)

The Refugee Review Tribunal and the Migration Review Tribunal are now part of the Administrative Appeals Tribunal (AAT). The AAT receives about 30,000 applications for review of visa decisions each year. An applicant for a visa dissatisfied with the decision of the Minister’s Delegate can appeal to the tribunal. If the AAT agrees with the government decision to deny a visa, the unsuccessful applicant can then appeal to the Federal Circuit Court, which is limited to deciding if the AAT made a jurisdictional error of law in reaching its decision. The Court receives over 6,000 migration applications a year, managing to finalise about 4,000 a year. Half these applications are from asylum seekers wanting a protection visa. The other half are mainly applications for student visas, skilled migration visas or partner visas. Once again, an unsuccessful applicant can appeal points of law up the court chain to the Federal Court of Australia and ultimately to the High Court of Australia.

A couple of years ago, the Macquarie University’s Social Justice Clinic published some disturbing findings revealing that all was not well with this system of judicial review. The study unearthed great disparities in the outcome of appeals dependent on the personality of the particular judge deciding the case. Associate Professor Daniel Ghezelbash explained: ‘We only examined members who had decided 50 or more cases to ensure the sample is large enough to be statistically relevant. Two members did not find in favour of a single asylum seeker applicant, and another 16 had approval rates of less than 5 per cent. At the other end, one member decided in favour of the asylum seeker in 86 per cent of cases, while another three members had approval rates over 40 per cent.’

The publicity surrounding the findings focused on the judicial activity of one judge in particular: Judge Sandy Street. Judge Street, who hails from a very distinguished New South Wales legal family (his father, grandfather and great-grandfather having each been Chief Justice of New South Wales), has developed a reputation on the Federal Circuit Court for dealing very promptly with refugee and migration cases. Street joined the Federal Circuit Court in 2015. After his first four years on the bench, the Macquarie University’s Social Justice Clinic reported that Street, wasting no time at the conclusion of argument, delivered ex tempore judgments in 816 of 842 refugee cases. Street found in favour of the applicant in only 1.66 per cent of cases. The average success rate of all refugee review cases over that time was 7.28 per cent.

Last week, one of Judge Street’s migration cases was successfully appealed to the Federal Court. The case involved Mr Nishan Singh who is an Indian citizen. Singh came to Australia on 1 March 2008 holding a student visa. Four years later, on 12 June 2012, he applied for a partner visa having married his sponsor Ms Sophia Swart who was an Australian citizen. It turned out that unbeknown to Mr Singh, Ms Swart was a drug addict. There were conflicting claims about how much time Singh and Swart spent together. On 28 November 2013, the Minister’s Delegate refused to grant the applicant a partner visa on the basis that there was no genuine and continuing relationship between the applicant and the sponsor. Mr Singh lodged an appeal with the Migration Review Tribunal on 12 December 2013. The tribunal ruled against him, having failed to consider some matters relevant to the determination whether Mr Singh and Ms Swart were living as spouses. Mr Singh appealed to the Federal Circuit Court for the first time and the Tribunal decision was set aside by consent of the parties. The matter was referred back to the Tribunal which ‘extensively plagiarised the first Tribunal’s reasons’. So once again the Federal Circuit Court set aside the tribunal decision.

You would think it would be third time lucky. But once again the tribunal considered Mr Singh’s case and ‘failed to consider evidence which was favourable to the Appellant’. This was evidence from four persons who claimed knowledge of the ongoing relationship and contact between Singh and Swart. This time the Federal Circuit Court was not minded to set aside the Tribunal’s decision. Mr Singh had the misfortune to have his matter come before Judge Sandy Street who followed his usual practice of delivering an ex tempore judgment on the spot at the conclusion of argument in the case.


'The frustration of the judges is showing. Without adequate resourcing and without first rate judicial appointments, the fraying of judicial nerves is set to continue in the migration field.'


Mr Singh lodged a further appeal from the Federal Circuit Court to the Federal Court of Australia. Justice Perram of the Federal Court was scathing in his assessment of Judge Street’s decision. Perram and Street were barristers together at the Sydney Bar, Street having been very much Perram’s senior, having come to the Bar eleven years before Perram, and having become a senior counsel ten years before him. All the more surprising and noteworthy that Perram would write in such a withering tone.

Justice Perram found that Judge Street’s reasoning was ‘entirely erroneous’. He went on to say, ‘It reflects a complete lack of intellectual engagement with the argument which was being put and is indicative of a judicial method in which meaningless phrases are unthinkingly gathered from the authorities like twigs and patched together in some kind of forensic bird’s nest. Judgments like this are a blot on the judicial department of government.’

Having reviewed the long and sorry history of the matter, Justice Perram went on to cast aspersions on the tribunal members who have had the carriage of the matter all these years. He wrote:

‘The Appellant’s initial application for review of the delegate’s decision was filed with the Tribunal as long ago as 12 December 2013 and the Tribunal has now been considering this entirely straightforward matter for nearly 8 long years. It is to be hoped that the Appellant, who is still a relatively young man, lives a long enough life to see the Tribunal deal with his review application according to law. It is by no means too much to expect that the Tribunal takes into account the matters which by law it is required to take into account, that it does not unwisely plagiarise earlier decisions which have been set aside and that it remembers to consider not only the evidence which is unfavourable to the Appellant but also that which is in his favour. Public confidence in the Tribunal resides in its reputation for competence. The conduct of the present review application is apt to undermine that confidence.’

Judges of superior courts do not often write judgments that are so damning of lower courts and tribunals. They appreciate the pressures on those courts and tribunals. There is obviously a building crescendo of dissatisfaction among some federal judges with the shortcuts being taken by some personnel of the AAT and the Federal Circuit Court trying to clear the backlog of migration applications.

In fairness to Judge Street, it should be noted that he had a big win in the High Court earlier this year. Five justices unanimously reversed an adverse ruling made against Street by another Federal Court judge, Justice Mortimer. When reviewing Judge Street’s adverse decision in relation to a self-represented asylum seeker from Pakistan, Justice Mortimer decided that Judge Street should have had his oral reasons for judgment translated for the benefit of the asylum seeker. She thought that the failure to provide a translated version of the reasons constituted a denial of procedural fairness. The High Court noted: ‘At a general level, Justice Mortimer concluded that the written reasons of the Tribunal and the primary judge did not disclose “any possible error deserving of close consideration” by the Federal Court, and that there was otherwise no error affecting the Tribunal’s decision.’ The High Court concluded:

‘The failure in the present case to interpret the primary judge’s ex tempore reasons was, in a general sense, unfair. So much may be accepted. However, with respect, rather than setting aside the decision of the primary judge, in the circumstances here, Justice Mortimer could have:

(1) adjourned the hearing of the appeal so that the transcript of the ex tempore reasons could be obtained; or

(2) invited the first respondent to amend his appeal grounds to address the contents of the published reasons, and, if necessary, adjourned the hearing of the appeal to permit this to take place.’

This High Court decision was written by the newly appointed Justice Steward who had been a junior judicial colleague to Justice Mortimer on the Federal Court and a deputy president of the AAT. With such a large caseload and backlog, judges at all levels are obviously feeling the strain, seeking the right balance between justice and efficiency.

76 per cent of the litigants appearing in the Federal Circuit Court in migration matters are unrepresented by legal counsel. Three-quarters of these unrepresented litigants are routinely provided with translators for over 70 different languages. The demands on our tribunals and courts in these cases are considerable. The frustration of the judges is showing. Without adequate resourcing and without first rate judicial appointments, the fraying of judicial nerves is set to continue in the migration field.



Frank BrennanFr Frank Brennan SJ is the Rector of Newman College, Melbourne, the Distinguished Fellow of the P M Glynn Institute, Australian Catholic University, and the former CEO of Catholic Social Services Australia (CSSA). 

Main image: Statue of Themis (Stella Vogt/Pixabay)

Topic tags: Frank Brennan, immigration, migrant visas, courts, justice, Judge Street, Justice Perram



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Existing comments

The learned judge was excelling himself with his image of a “forensic bird’s nest.”

Steve Sinn | 13 July 2021  

Always lucid, thank you, Frank. I've just watched a heartening story on ABC's 7.30 about a struggling migrant who gained a job at Repco and has shown strength of character by settling in well and making friends with his co-workers. He is overjoyed to be accepted. If only our government was willing to be more compassionate; then our judicial system would not be under such pressure.

Pam | 13 July 2021  

When are Australians going to tell our Govt. we have had enough of this blatant cruelty inflicted on refugees wanting help ? We are the most selfish country in the world, and a laughing stock to boot, as regards our negative climate change policies!

Bernie | 13 July 2021  

Frank. I reckon that you have just proved that the Law is indeed an ass. I would also observe that seniority or family background in any discipline does not guarantee quality!

john frawley | 13 July 2021  

...gotta love those bird nests!!! Funny how two people "devoted" to each other live at different addresses, one enters on a work visa but doesn't convert to spousal, claim Centrelink as single, no linked mutual financial support, separate bank accounts yet wanna be "de facto". Going rate is $50k for a sham marriage but they're not government guaranteed. How can someone so disorganized with simple immigration visa requirements be shrewd enough to self represent in an appeal? Needs more judges or appointees and a higher fee to seek appeals to reduce frivolous claims to just stay longer while applicants continue to work; the court delay is just dollars in pockets, longer suits applicants... a visa is irrelevant for cash work. Sorry to sound cynical or harsh but that's the counterclaim. How does a spousal visa work after the relationship ends? Great article, thought provoking, as always.

ray | 13 July 2021  

Appalling that Australian judges have now agreed it is okay to lock innocent people up indefinitely.

Margaret | 14 July 2021  

You are keenly observant, Frank, as well as appropriately judicious in letting Justice Perram do the work for you. A rare combination! Great Thanks for keeping us informed.

Michael Furtado | 14 July 2021  

Here are the links to the key judgments to which I refer in the article. Judge Street in Singh v Minister for Immigration [2020] FCCA 2540 at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2020/2540.html. Justice Perram in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 755 at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/755.html. Justice Steward (and the full bench of the High Court) in Minister for Immigration v AAM17 [2021] HCA 6 at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/6.html.

Frank Brennan SJ | 14 July 2021  

‘Judge’ being between magistrate and justice, the FCC must be the federal equivalent of a state district court. So, Street should be issuing written decisions if the law from his court is to be open to public, professional and academic scrutiny, especially in something as grave as a test for asylum. For the same reason, all asylum claimants should be represented. The Australian judge is an umpire, not an investigator. It’s offending his dignity not to provide him with the requisite competent officials on either side of a matter to help him declare the law.

roy chen yee | 14 July 2021  

Amended orders (4) The Applicant pay 7 years full spousal maintenance and (5) The Applicant pay restitution of claimed but unpaid child support and maintenance to the minimum required under Centrelink base rate calculation. Who's next?

ray | 15 July 2021  

Political appointments to the AAT of people who are not legally trained, and the myriad of problems with the model underlying the IAA have had a real impact as well.

Ben | 18 July 2021  

We now have a government mindset that all refugees are nasty, horrid people who are a danger to this country and must, repeat must, be prevented from polluting our fair land. Anything to prevent this must be done. We are a long way from Nazi Germany or Pavlich's puppet regime in Croatia, but they would applaud this sort of thinking and action. Somewhere I hear the dry bones of White Australia rattling. God save Australia from this lunacy!

Edward Fido | 23 July 2021  

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