ALICE BRENNAN: Hi there, Alice Brennan here, and welcome to Background Briefing.

The thing Joe remembers most about that cold Sunday night in late July is the loud thumping on the door.

It shook him from his sleep.

It was Border Force officers.

JOE: I told, you need to check into my case. And he said, ‘that’s not my job to look into your case. My job is to remove you’.

Joe is an asylum seeker. His visa had just expired.

JOE: They told me ‘you have 5 minutes to pack all your stuff ‘cause you’re moving’. They said, ‘This is the order from Border Force’.

ALICE BRENNAN: Hagar Cohen, how did it get to this?

HAGAR COHEN: Well it all started with what Joe says was a violent family dispute over land, in his home country, Kenya.

You see, Joe came to Australia as a student in 2014, hoping to find safety... and a couple of years later he declared himself a refugee.

JOE: They don’t care, they don’t care about being protected. The system is corrupt. So that’s why I coming here, for protection.

By mid 2019, Joe’s applications for protection had all been rejected.

ALICE BRENNAN: One of his last options left was to argue his case at the Federal Circuit Court… but he didn’t have a lawyer to help him.

HAGAR COHEN: Right, so on the 11th of June, Joe put his best jacket on, ready to tell the judge that if he was sent back to Kenya, he’d be killed.

He says he’d already been bashed up up twice there, by men who had knocked his teeth out.

ALICE BRENNAN: If Joe lost this case, he could be deported, and he’d be back in Kenya in less than a month.

JOE: Yeah I was nervous going to the court. And what what came into my mind… I was so scared, it was so scary, because it was my first time I was standing in front of the judge.

HAGAR COHEN: And did you know what to say? What your arguments were going to be?

JOE: I thought I was going to argue my case according to the facts. But the judge was talking about the Article, I don’t know… Article 36 according to migration law. With me… I’m not conversed with the law.

HAGAR COHEN: Despite Joe’s emotional plea… Things did not go well that day.

JOE: The judge said ‘your case has been dismissed’. I was shocked. I was shocked. I didn’t know what to say.

JOE: After the judge dismisses the case, he make an order you have to pay the first respondent fee of $5000. I explained to the judge, ‘look I don’t have any money, I’m in detention, I don’t have any money’.

HAGAR COHEN: The judge delivered his ruling for Joe orally, in the courtroom -- which is allowed, but not common in these protection visa cases.

ALICE BRENNAN: Right, so this is a practice known in the legal world as “ex tempore", it’s Latin for “at the time” or on the spot.

HAGAR COHEN: Yes, and Joe didn’t fully understand what had just happened. He needed help. After that court appearance he googled “human rights” and “Sydney”.

And that’s how he found the charitable law firm Human Rights for All, run by Alison Battison.

ALISON BATTISON: A gentleman who came to me and said, ‘I lost in the Federal Circuit Court. Can you please assist?’ I said, ‘Oh, can I please have the reasons?’

ALICE BRENNAN: Generally, a judge explains the reasons for their decision by providing a written judgement, though not necessarily on the hearing day, right Hagar?

HAGAR COHEN: Yes, and what Alison was saying to Joe, was that she needed to read the judge’s reasons for rejecting him. Only then could she look for possible legal errors to base an appeal on. Joe didn’t know what she was talking about.

ALISON BATTISON: ‘What do you mean you don't have them? I don't quite understand’. So I wrote to the court several times. The judge's associate was responsive where they could be but are really led by the judge that they are working for. I was very confused, to be honest.

HAGAR COHEN: Time was running out for Joe. From when he left court, he had 21 days to lodge an appeal.

ALISON BATTISON: So it was a real waiting game and I was just very confused. I did think that I would have a right to the written reasons within the appeal period. It's already difficult enough for asylum seekers and refugees but when you don't actually know why you've been rejected and people keep telling you that well, there were oral reasons given on the day, this particular person speaks barely passable English. So there's absolutely no way that he was able to instruct me in any professional sense at all. Meanwhile, Joe’s 21-day deadline came and went and still no written judgement.

ALISON BATTISON: Two days after the appeal period ran out and we still don't have reasons. Border Force came to him and said, “We're getting ready to deport you. What are you doing with your case?”

HAGAR COHEN: Joe rushed in a last minute court application for an extension of time. He was moved to Yongah Hill detention centre, outside Perth.

ALICE BATTISON: So Hagar, the judge in this case actually has a history of attracting controversy over his handling of cases just like Joe’s, right?

HAGAR COHEN: He does.

ALICE BATTISON: I’ll let you take it from here.

HAGAR COHEN: On 27 occasions this judge has been criticised by the Federal Court… either for denying procedural fairness or for his treatment of litigants. His name is Judge Sandy Street.

Professor of law at the University of NSW, Gabrielle Appleby has been following Judge Street’s cases closely.

GABRIELLE APPLEBY: We're seeing a repeated denial of procedural fairness to individual litigants. And when you go and you look at those cases, they're predominantly where individuals are seeking safe haven or refugee visas and are claiming that they're coming from incredibly unsafe, stressful situations and they're seeking asylum in Australia, and then they're confronted by one of our state institutions that is denying them this procedural fairness. We should be concerned.

HAGAR COHEN: 1 in 9 of Judge Street’s rulings in refugee matters have been overturned on appeal. But there are serious limits to what can be done in these situations. Be that as it may, two weeks ago, the Chief Justice of the Federal Court described what happened in one hearing as ‘deeply troubling’. We’ll hear more about what the Chief Justice said later.

I just arrived at 80 William Street in Woolloomooloo, Sydney. I’m outside the Federal Circuit Court where a lot of the migration cases are heard, and today I’m going to be all day in the courtroom of Judge Sandy - or Alexander Sandy Street. So I’ll be here all day and I’ll keep you in the loop about how it’s all going.

Up on level 9, after you go through security, there’s a bare looking waiting area with a few leather sofas. As the day begins, this room fills with dark suit wearing lawyers carrying heavy folders on wheels. They all look confident. They’re here to fight cases about bankruptcy, discrimination at work, consumer protection, human rights and migration. The room is filling with refugee applicants too. They are not wearing suits. Some are hunched. Others look down at the floor, nervous.

SAM: I just… I don’t know what will be my life… yep.

HAGAR COHEN: The judge in courtroom 9.1 is Sandy Street. He handles more refugee cases in the Federal Circuit Court than any other judge. He’s tall, broad-shouldered and middle-aged. He has a habit of pacing back and forth behind the bench. Fingers tucked in his trousers’ belt loops. His tone of voice is quiet. But also very efficient. Always to the point.

So how does a refugee applicant end up here?

To seek asylum in Australia, you first need to lodge a request with the Department of Home Affairs. That’s stage one. If the department rejects your claim for protection, then stage two is lodging an appeal with the Administrative Appeals Tribunal. That’s your last chance to submit evidence proving that you are a refugee. If the Tribunal doesn’t accept your evidence, doesn’t believe your story is real, or simply concludes that you’re not a refugee, it is possible to appeal that decision too -- but only by arguing that there were legal errors.

SARAH DALE: And then their only option is to seek judicial review at the Federal Circuit Court.

HAGAR COHEN: So the Federal Circuit Court -- where Sandy Street presides -- is stage three.

Sarah Dale is the principal lawyer for the Refugee Advice and Casework Service. She’s assisted hundreds of asylum seekers at this stage.

SARAH DALE: This is the end of the line for people seeking asylum. People in this stage often have had issues with work rights, they no longer are eligible for any government financial support, and so therefore people are left in a very desperate situation. And so this court opportunity is their last chance to be heard and their last chance to get back onto a pathway of remaining in Australia.

HAGAR COHEN: By the time you get to the Federal Circuit Court, your arguments can’t include evidence about whether you’re a refugee or not. You’re really just arguing legal technicalities.

SARAH DALE: So once it's at the Federal Circuit Court, it's about administrative law which is so legalistic and bound with court etiquette and rules of evidence that lawyers struggle to get their heads around it, let alone a person that hasn't had a lawyer at any step along the way. Certainly it's not about the person's experience as an asylum seeker, it's not about what happened to them in their home countries. And that's what they're ready to really talk about.

HAGAR COHEN: Sarah says by the time they find themselves at the Federal Circuit Court, statistically they are likely to fail.

SARAH DALE: Our experience is as you get further along your chances do get smaller and smaller and smaller, and that's due to how the law is applied.

HAGAR COHEN: And yet what are the stakes for people in this situation?

SARAH DALE: For many people it would seem a matter of life or death. So if people are denied an ability to have their case fairly heard at all stages of the process then it's a denial of safety.

HAGAR COHEN: To try and understand more about how refugee cases are decided… I’ve come to the Social Justice Clinic at Macquarie University where a small team of researchers are collecting statistical data. They’re looking into things like: What percentage of rulings by a particular judge are successful? How many have failed? What percentage of refugee applicants are unrepresented?

The project’s lead is Dr Daniel Ghezelbash. It’s a very controversial assignment.

DANIEL GHEZELBASH: So the French government in response to a similar project compiling statistical data about judicial decision making in the refugee context, the government decided that they didn't want that sort of research going on and they passed laws creating criminal prohibitions on this sort of research.

HAGAR COHEN: He says it’s so sensitive because the stats could be used to unfairly undermine the credibility of certain judges.

DANIEL GHEZELBASH: Because of the potential for the data to be interpreted in the wrong way really, so and and that's why we try to be really upfront from the beginning that the differences in judicial decision making patterns don't necessarily mean there's anything nefarious going on and there could be other explanations for what's going on. And I guess there's a perception that, used the wrong way, that this sort of research can undermine public confidence in the judicial decision making process which certainly is not our intention with this project.

HAGAR COHEN: The sensitivity hasn’t deterred Daniel Ghezelbash. If anything, it’s made him more committed to the project.

DANIEL GHEZELBASH: We have found variation among the success rates across different judges, but we haven't taken that next step in terms of drilling down in terms of what the explanations are for those discrepancies.

HAGAR COHEN: We are about to get a preview of the project’s results.

KEYVAN DOROSTKAR: We're collecting statistics from every single refugee case from 2013 to 2019 and we're looking at patterns of judicial decision making for a refugee. What would you like to know?

HAGAR COHEN: I want to know the statistical probabilities for success in refugee cases. Law student Keyvan Dorostkar, collated the data.

KEYVAN DOROSTKAR: The average sits at that 10 percent mark.

HAGAR COHEN: According to Keyvan’s statistics, 10% is your chance of winning a refugee case in the Federal Circuit Court. Then we drill down into individual judges’ results. This an incredible resource.

KEYVAN DOROSTKAR: Oh it’s great, great. The reason i want to do this is I just want to double check. Now this particular judge has decided 102 cases with 24 being successful, so that’s sitting around obviously a 24 percent, 25 percent success rate.

HAGAR COHEN: He found a very different result when it came to Judge Street.

KEYVAN DOROSTKAR: It is my understanding, I can confirm that out of 844 cases, only 14 cases were successful.

HAGAR COHEN: So it's a pretty low success rate.

KEYVAN DOROSTKAR: That's correct.

HAGAR COHEN: So so in a sense you found out that if you're an asylum seeker whose decision will go to court with Judge Sandy Street at the bench would have about 1 percent chance of success?

KEYVAN DOROSTKAR: If I speak solely on the statistics, it's an unlikely occurrence that it would be successful, but that's purely on statistics and not taking any other considerations outside legal considerations of the prospects of the success of a case.

HAGAR COHEN: And there is something else interesting… The team’s preliminary results show that the average time it takes all Federal Circuit Court judges to deliver a ruling on refugee cases is 2 months after the hearing.

But Judge Street delivers almost all of his judgements on the same day.

KEYVAN DOROSTKAR: 818 of the 844 cases were delivered on the same day.

HAGAR COHEN: Most asylum seekers who come to the Federal Circuit Court are self represented. That means, they don’t have a lawyer. Just like the next refugee applicant. He’s an Iranian asylum seeker from an Ahwazi Arab background. They’re a minority who have been persecuted in Iran for practicing their cultural traditions, and speaking their language - Arabic. This man’s application for asylum was rejected by the Department of Home Affairs and by the tribunal. Officials acknowledged that the racial abuse he experienced was distressing, but not that it amounted to serious harm or a threat to his life. He’s referred to in court only by the code name given to him by the Department of Home Affairs - CQX18.

HIS HONOUR: Are you the applicant known by the pseudonym CQX18? You need to answer aloud. Mr Applicant, what's your date of birth?

THE INTERPRETER: He can't hear us, your Honour.

HAGAR COHEN: This is a re-enactment of part of this man’s hearing, based on court transcripts.

Judge Sandy Street is on the bench. The asylum seeker is speaking via video link because he’s in Yongah Hill detention centre in WA.

We’ll hear his words translated by his interpreter -- she’s there in court with Judge Street in Sydney. And the lawyer for the Minister of Immigration, is also in court in Sydney.

So everyone is in the same room apart from the detained man.

HIS HONOUR: . Mr Applicant, what is it that you want to tell me as to why you think the authority's decision is wrong or what do you want to say in support of the grounds in your application?

THE INTERPRETER: First of all, I would like to say that it's somehow unfair that I sit here all alone on my own and try to defend myself in front of this court - before this court.

HIS HONOUR: Mr Applicant - no, stop, Mr Applicant. You're not defending yourself. the court is giving you the opportunity to present your argument by audio link. What else do you wish to say?

THE INTERPRETER: I would like to say that I haven't had any lawyer to support me to give me any help and wherever I have asked and requested help, nobody has helped me. First of all, I would like to ask you to set my affidavit in front of you and line by line I would like to ask you why, why is it that I was not accepted and I would like it to be explained to me the reasons of my rejection.

HIS HONOUR: Mr Applicant, it's not my role or function to have to explain to you the authority's decision. What else do you wish to say?

HAGAR COHEN: The detained man starts telling Judge Street about his background.

THE INTERPRETER: First of all, I would like to say that I would be discriminated against .... This is my first say - claim.

HAGAR COHEN: The video link keeps freezing. And everybody sounds frustrated.

THE INTERPRETER: Sorry. He can't hear us either, your Honour.

HIS HONOUR: Can you hear me yet, Mr Applicant? Yes, it's back on. Can you hear me, Mr Applicant?

THE INTERPRETER: I think he's frozen...

THE INTERPRETER: If I return to my country I have to go to the court and explain some issues. \

HIS HONOUR: Yes.

THE INTERPRETER: Is this correct or am I just talking irrelevant things?

HAGAR COHEN: The truth is the Iranian applicant was talking about irrelevant things. It was too late for him to present evidence about his refugee status. This was meant to be just a debate around legal technicalities.

Judge Street delivers his judgement “ex tempore” -- orally, on the spot. Then, he instructs the interpreter not to translate his reasons.

HIS HONOUR: Mr Applicant, the court is going to deliver its reasons now. The court is not going to have the Interpreter translate the reasons to you. It's not necessary for that to be done. But I will inform you of the outcome of the decision.

HIS HONOUR: Mr Applicant, your case has been dismissed.

HAGAR COHEN: The man is ordered to pay more than $7000 in court costs.

THE INTERPRETER: Firstly, I don't have that money. Secondly, I have been dismissed here. I have been rejected. I don't know about your rules, and I would like to ask you if you could waive that. All I'm doing here is trying to be free.

HIS HONOUR: Mr Applicant, I understand what you've said, but the ordinary rule is that costs follow the event.

THE INTERPRETER: So what's going to happen next? I understand I've been rejected. What's going to happen next? Am I supposed to return to Iran?

HIS HONOUR: Mr Applicant, the court has made orders that your application has been dismissed and you've been ordered to pay the costs of the first respondent. It's not my function to give you any further advice.

THE INTERPRETER: Thank you very much for rejecting my application. Goodbye.

HAGAR COHEN: So after that ruling was delivered - ex tempore and without translation, this man got a hold of a lawyer.

But similar to the case of Joe - the Kenyan refugee - Judge Street did not make a written judgement available for another 75 days. That’s 54 days after the appeal period had expired.

He rushed in a notice of appeal. The Federal court approved it… and in fact, just 2 weeks ago, this case for appeal went before the full bench: 3 of the most senior judges of the federal court - the chief justice included.

We’ll hear more about what happened there, a bit later.

I wanted to know more about Judge Sandy Street.

JOHN YOUNG: Judge Street comes from what would probably be regarded as the most distinguished background of a legal family in New South Wales history.

HAGAR COHEN: Many in the legal fraternity, like barrister John Young, are well versed in the Street family background.

JOHN YOUNG: So one could not be talking about a more blue blood family of lawyers, and on the maternal, on the female side of the family, people who have been path breakers I mean in New South Wales history

HAGAR COHEN: In the legal profession, the Streets are - royalty.

JOHN YOUNG: His father Sir Laurence Street was Chief Justice of New South Wales. His grandfather Sir Kenneth Street was Chief Justice of New South Wales and I believe his father was Chief Justice of New South Wales. Sir Laurence Street's mother was Jessie Street who's famous in terms of campaigning for women's rights in in New South Wales. His sister Sylvia Emmett is also on the on the Federal Circuit Court and she's married to a judge of the Federal Court and the Emmett-Street family has other members of the court as well.

HAGAR COHEN: Before being appointed to the bench, Sandy Street was a top-tier barrister…

JOHN YOUNG: Sandy Street was famous for a case that he brought against the Queensland Bar Association.

HAGAR COHEN: That case in 1989 went all the way to the High Court. It was known as ‘the dingo fence’ - where Sandy Street argued successfully that members of the bar who were residents of NSW… should be able to practice law beyond the so-called dingo fence… in the state of Queensland.

JOHN YOUNG: At that stage at least he was the he was beloved by members of the NSW bar having brought down the dingo fence.

HAGAR COHEN: Fast forward nearly 30 years... in 2014, Sandy Street SC was appointed to the bench by then Federal Attorney General George Brandis. After 6 months as a judge, he’d presided over 254 judicial reviews of migration cases. He dismissed 252 of them.

Soon after, this strike rate was the ground for an apprehended bias application. It was brought forward by a refugee applicant.

MARK COLVIN: A Federal Circuit Court judge, who has consistently denied protection visas to asylum seekers, is facing a high profile appeal after he refused to step aside. Federal Circuit Court Judge Sandy Street has thrown out scores of appeals by asylum seekers before evidence could be gathered or full hearings held…

HAGAR COHEN: That application failed -- the Federal Court decided each case has to be argued on its individual merits, and that statistics cannot be used to determine overall bias.

So far, Street’s rulings over refugee matters have been successfully appealed over 90 times.

In 27 of those cases, his rulings were overturned on the grounds that there had been a denial of procedural fairness, or for his treatment of litigants.

GABRIELLE APPLEBY: What I think we're seeing in relation to Judge Street is yes an unusual number of cases in which this is occurring, but also because it's happening in the Federal Circuit Court in a jurisdiction, the Commonwealth jurisdiction, which doesn't have a system in place to deal with this at a disciplinary level, we're seeing it as an ongoing concern and it's repeating.

HAGAR COHEN: Professor Gabrielle Appleby has examined those appeal decisions closely.

GABRIELLE APPLEBY: Time and time again is not just a question of competency, legal competency. Did he understand the law and apply the law correctly? But it's a sustained set of comments about how professional he is in the courtroom and particularly his interaction with litigants and unrepresented litigants in highly stressful, predominantly immigration cases.

HAGAR COHEN: She believes current mechanisms for holding judges to account are inadequate.

GABRIELLE APPLEBY: My major concern is that the appeal process is not sufficient. There's a desperate need for another robust transparent process to be put in place.

HAGAR COHEN: Federal court judges have been particularly critical of Judge Street’s use of what are called summary dismissals.

A summary dismissal is when a judge rejects an application on the first court appearance. In many of Judge Street’s cases, instead of setting a date for a hearing, as is common practice - he asks the applicants to argue their case on the spot, without an opportunity to prepare further.

And then, he dismisses their application.

I spent hours going through Judge Street’s cases… and I found out that on the morning of 9 April 2015 - he dismissed 21 migration cases between 9.30 and 10.15am. They were all summary dismissals.

I’ve also learned that in a space of 5 months, 132 matters were summarily dismissed by Judge Street.

Barrister John Young and solicitor Elee Georges represented a number of the asylum seekers in that list of summary dismissals. They appealed some of those cases, one after another at the Federal Court, and won all of them.

I meet them at Elee’s busy Parramatta practice.

LAWYER: You’re following the interesting story of Judge Street?

HAGAR COHEN: They are speaking publicly about Judge Street for the first time.

ELEE GEORGES: We're officers of the court. So we have a duty to the court first and foremost, even before our clients. But when you have so many federal court cases where the second most important group of judges in Australia are saying, ‘this is wrong’, then I think lawyers have a duty to speak out.

HAGAR COHEN: One of Elee Georges’s clients, a Nepalese family seeking asylum, was the subject of not 1, but 2 summary dismissals - both by Judge Street. The mother came to Australia in 2008 on a student visa. She attended her first court date in 2015 with the help of an interpreter.

ELEE GEORGES: From the very opening he questioned her legitimacy of using an interpreter. He asked her from the very beginning words to the effect of ‘you need an interpreter, even though you've come here on a student visa?’

HAGAR COHEN: Counsel John Young, who argued her case in the Federal Court, was shocked by this interaction.

JOHN YOUNG: And I never normally get a judge commenting adversely on the use of an interpreter because it's just regarded as a basic right. And if someone says ‘I need an interpreter,’ well, well you accept it. But in this case it was the aggressive tone, almost the very first thing, ‘you're the first applicant known by the pseudonym CPF15, is that correct?’ And she says ‘yes, yes’. And then ‘and you need an interpreter, even though you came on a student visa in 2008?’

HAGAR COHEN: Judge Street’s ruling was overturned in this case by Justice Flick of the Federal Court because of a denial of procedural fairness. He said there was a “disturbing and unanswered inference” the family was not given a proper opportunity to present their arguments.

Justice Flick said it was an error for Judge Street to question the mother’s need for an interpreter.

JOHN YOUNG: And as the Justice Flick later said, the exchange would put the woman on the back foot right from the outset.

HAGAR COHEN: So the matter went back to another hearing at the Federal Circuit Court. Giving the family another crack at arguing their case. And which judge took the case?

ELEE GEORGES: So Judge Street took it upon himself to bring the matter before himself. He saw no problem with that.

HAGAR COHEN: So that would be for the second time?

ELEE GEORGES: For the second time, yeah. We objected to that.

HAGAR COHEN: Why is that?

ELEE GEORGES: Well, without making any allegations against His Honour, what we thought is that the perception is important in our justice system, the perception that the judge hearing the matter brings a fresh mind to it. And he has, some would say, an interest in the outcome of the proceedings because he's got an interest in defending what he did before, I should say.

HAGAR COHEN: Elee submitted 3 separate applications for Judge Street to recuse himself on the grounds of apprehended bias.

ELEE GEORGES: So he refused all those applications, he heard the matter and he summarily dismissed it again for a second time.

HAGAR COHEN: This time, Judge Street ordered the Nepalese family to pay court costs for the government… and he ordered them to pay even more than what the government had requested.

ELEE GEORGES: That difference is not huge, but just the fact that that was done was, in my submission, was inappropriate.

HAGAR COHEN: Elee Georges and John Young again appealed in the Federal Court, and the summary dismissal was overturned a second time.

Justice Robertson said the summary dismissal was again a denial of procedural fairness. He said Judge Street was wrong to prioritise his desire for speedy proceedings over the applicants’ right to procedural fairness. This time, an order was made that the matter be heard by a different judge.

ELEE GEORGES: We’re finally are going to get a fair hearing and if the applicants lose a fair hearing then I don't think they'll begrudge the system. But all we want is a fair hearing for these applicants.

HAGAR COHEN: In one other migration case, involving a business visa applicant from Vietnam, the lawyer for the Minister for Immigration acknowledged that the applicant’s grounds were correct. Even with both sides arguing in favour of the applicant, Judge Street dismissed the case.

Something similar happened to John Young. In one case, the applicant didn’t have time to get the transcript of their hearing from the Administrative Appeals Tribunal - so obviously it was difficult for them to argue why they thought the tribunal was wrong.

John Young asked for a new date for a hearing. The minister agreed. But Judge Street didn’t.

JOHN YOUNG: The judge said in effect, the tribunal gave them a fair hearing because the tribunal said we gave them a fair hearing. I'm paraphrasing but that's what he said.

HAGAR COHEN: That decision was appealed in the Federal Court on the grounds that it was wrong for Judge Street to determine that the refugee application was -- quote -- “doomed to failure” and, as a result, had “no reasonable prospect of success.”

The full bench of the Federal Court agreed, and added that “These circumstances, or ones similar to them, should not occur again.”

JOHN YOUNG: Now that the federal court said in effect, ‘We would hope this never happens again’. That's in 2015. Here we are in 2019 still talking about it.

HAGAR COHEN: So it's still happening?

JOHN YOUNG: It's still happening with Judge Street and for the same reasons.

HAGAR COHEN: There’s no doubt judges carry a huge workload -- and the pressure to get through cases quickly is immense. Each judge in the Federal Circuit Court is allocated around 500 cases a year. The chief judge wrote in last year’s annual report that the system is “unsustainable”. Over the last financial year, Judge Street has dealt with 660 cases. He regularly sits in other locations around Australia to assist with the demanding workload.

John Young’s concern is that the court’s heavy workload shouldn’t affect a person’s right to a fair hearing.

JOHN YOUNG: Well the judicial function is above all to provide certainty of fairness to make sure that the law is being applied. If all it's doing, if a court simply says in terms of rushing through cases, getting through a workload, that it'll just won't give people adjournments, it won't allow people to have interpreters or it'll challenge people about interpreters, then it's inconsistent with its function.

HAGAR COHEN: But John Young says… there’s a lot at stake, particularly in refugee cases.

JOHN YOUNG: This above all is an area where people do need to be assured of a proper hearing. If if if their claims are valid in many cases their lives are at stake you know that’s what we're talking about. Protection visas are based on an allegation that you have a well-founded fear of persecution in the country that you're fleeing from. So lives are at risk if their claims are true. So it's high stakes stuff.

HAGAR COHEN: One of the most recent of Judge Street’s decisions to come under appeal in the Federal court... was just a couple of weeks ago. It was over his decision in the case of the Iranian refugee, the one given the codename CQX18. And I was there to find out what happened.

As I enter court number one… it’s eerily quiet.

Two sets of lawyers are lined across 2 sides of the courtroom, facing the bench. At the back… the layout is a bit like a theatre. Only today, the chairs are empty.

Everybody stands as the Chief Justice of the Federal Court James Allsop enters, with his colleagues at the bench, Justice Melissa Perry and Justice Jacqueline Gleeson.

The three judges sit at the bench.

Here’s a re-enactment, interspersed with my comments recorded outside after the hearing.

Chief Justice James Allsop speaks first…

JAMES ALLSOP CJ: We start this appeal in a somewhat unusual way. The court has some real concerns there are aspects of the way this appeal appears to have been conducted that are deeply troubling to the bench. It is not the bench’s custom to act as procurator or prosecutor, but there are issues in relation to how this hearing appears to have been conducted that strike all of us as troubling.

HAGAR COHEN: Then Justice Perry, his colleague, starts listing them - listing those troubling things. The first thing they’re saying that the applicant, so the refugee, wasn’t present. He was appearing via video link and there were problems with the video link, the screen kept freezing.

MELLISA PERRY J: The first point, of course, is the obvious one, that the applicant was not present in the courtroom and that the interpreter was, of course, in the courtroom, and it’s also evident during the course of the transcript that there were problems with the video link with, for example, the applicant missing things and the screen freezing.

HAGAR COHEN: When Judge Street was giving his instructions, and explaining why the application was dismissed, he instructed the interpreter not to interpret this to the refugee. The refugee didn’t even understand that the case was dismissed. The refugee clearly didn’t understand any of what was going on.

MELISSA PERRY J: There’s no other explanation of what the effect of the orders were so that the applicant is left in limbo as to what has occurred. So those were the particular aspects ... which raise the question of whether, in my mind, there was any real hearing at all... effectively a lot going on that the Minister’s counsel and the judge knew and understood, but from which the applicant, who was the person whose future was being affected by the decision, had no idea.

HAGAR COHEN: After this address to the court, there was a 15 minute adjournment. The counsel for the Minister came back saying that by consent the parties decided that the case of the refugee will go back to the Federal Circuit Court and heard by a judge different to Judge Street.

So what happens from here?

Apart from appealing to a higher court, there’s not much that can be done if you’re unhappy with a judge’s decision.

This raises the question... who judges the judges?

GABRIELLE APPLEBY: What it basically is is that complaints can be made to the head of jurisdiction which would be the chief judge or the chief justice. And from there once a complaint is made, the entire system is opaque. There is no transparency about what happens then.

HAGAR COHEN: Professor Gabrielle Appleby has been studying the independence of the judiciary in Australia.

She is critical of the current complaints system.

GABRIELLE APPLEBY: It's a voluntary system, it's opaque and there are no disciplinary powers attached. So for someone who's been or feels they have been mistreated by a judge that system can often feel very, very inadequate.

HAGAR COHEN: There is one more option…

GABRIELLE APPLEBY: Which is sometimes referred to as the nuclear option.

HAGAR COHEN: The ‘nuclear option’ is the removal of a judge by an act of parliament. It’s high stakes stuff.

GABRIELLE APPLEBY: Complaints can be made to the Attorney-General. And it is ultimately then for the Parliament, the Houses of Parliament, to investigate that complaint and to determine whether or not they should ask for the judge's removal. Now that's a very high bar. At the federal level in Australia, that has never occurred.

HAGAR COHEN: Judge Sandy Street and Chief Judge William Alstergren were not able to provide an interview or a comment for this program.

But I did get a statement from the Federal Circuit Court.

FCC STATEMENT: Judge Street is an extraordinarily hard working judge and has made a significant contribution to the work of the Court... While the Court is not at liberty to discuss individual cases, Chief Judge Alstergren acknowledges that many of Judge Street’s decisions have been overturned on Appeal and in response to this, Judge Street is receiving mentoring to assist and support him to fulfil his duties.”

HAGAR COHEN: Professor Gabrielle Appleby says more is needed for the system to change.

She suggests a national complaints body that can investigate judges and discipline them -- a federal judicial commission.

GABRIELLE APPLEBY: We see concerns around Judge Street when people look at the figures in relation to the decisions that he's making for and against the department. And I think that if there was an independent robust process put in place to which complaints could be made about individual judges, this kind of public concern would at least have an avenue through which to be dealt with in an appropriate way.



Background Briefing’s Sound Producers are Leila Shunnar and Ingrid Wagner.

Sound engineering by Isabella Tropiano.

Fact checking by Benjamin Sveen and Meghna Bali.

Additional research by Meryem Aydogan.

Supervising Producer is Ali Russell.

Our Executive Producer is Alice Brennan.

I’m Hagar Cohen.