Judge who has had more than 70 cases overturned in four years failed to publish reasons for decision until after appeal time limit had lapsed

A full bench of the federal court has again overturned a migration decision by the controversial circuit court judge Sandy Street, who failed to publish his reasons until after the time limit for the man to appeal had lapsed.

In May this year Street dismissed an Iraqi man’s appeal against a negative refugee assessment, which had been upheld by the Immigration Assessment Authority (IAA).

He upheld the original decision and gave his reasons in court, orally ex tempore (at the time) but then failed to publish them in written form despite requests from the man’s lawyers. Multiple emails and calls to associates at Street’s office went unanswered.

Because of this, they missed the deadline to lodge a notice of appeal, forcing them to seek an extension.

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This week a full bench of the federal court granted the Iraqi asylum seeker an extension, based on the thwarted attempts to obtain the reasons in time, and set aside Street’s decision. It ordered the IAA’s ruling be quashed and the man’s case be redetermined according to law.

“In this case the essential reason for the failure to file a Notice of Appeal within time was the unavailability of the primary judge’s ex tempore reasons delivered,” the federal court ruled.

“The appellant, who had appeared for himself before the FCC, was not able to ascertain and did not know why his application had been refused.”

Street has had more than 70 cases overturned in the four years since he was appointed by the then attorney general, George Brandis. He has been found to have denied procedural fairness more than once, and to have failed to properly try cases and give proper reasons for his decisions.

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He has been criticised in the past over his frequent ex tempore decisions and on the basis of research by lawyers which found in his first six months he ruled against asylum seekers 252 times in 254 cases.

Street has been accused of bias on at least two occasions but cleared both times.

This week the federal court said the cause of the Iraqi man’s failure to file the appeal was “wholly outside the responsibility of the appellant”.

“It could not be suggested that he ought to have filed an appeal without knowing whether he had any valid grounds for doing so.”

The Iraqi man had applied for asylum in Australia in 2016, claiming he feared persecution because of his previous job as a police officer for the Iraqi ministry of the interior, working with the US army. He said the Mahdi army had threatened to kill him as an infidel, and that they had shot and killed his father.

The decision of the delegate (for the immigration minister) – which was upheld by the IAA and Street – included a finding that the man had not received threats from the Mahdi army or other militias in recent years.

But the federal court noted the IAA had not appreciated that part of his claim of fear of harm was that he had been forced into hiding, working on farms far away from his home and distancing himself from his family. Instead it described him as being “relocated” to a town after he was last threatened.

“The formulation of this part of his claim as him merely “relocating” actually misstates the essence of the allegation,” it said.

“Relocation suggests that harm might be avoided merely by changing locations. That is quite different to hiding which involves the essential element of concealment in order to avoid detection by pursuers.”

It said the IAA had failed to consider an important part of the man’s claim, and that was a jurisdictional error.

Street and the federal court were approached for a response, but a spokeswoman for the court declined to comment on active cases.