Street took 75 days to give written reasons for judgment when applicant had only 21 days to appeal

This article is more than 1 year old

This article is more than 1 year old

The federal court has again criticised the controversial judge Alexander “Sandy” Street, after he again failed to publish reasons for a decision in time for an asylum seeker to appeal.

Street, who sits on the federal circuit court, took 75 days to publish written reasons for a judgment he delivered orally in Sydney in July, dismissing an application by the Iranian asylum seeker for a review of a visa rejection and ordering him to pay more than $7,300 in costs. The man had 21 days to submit an appeal.

In a federal court judgment dismissing an application for a judicial review of Street’s decision last week, Justice Nye Perram was nonetheless critical of Street’s processes. His failure to publish a judgment or respond to the man’s lawyer’s emails and phone calls “should never have happened” and showed “a disheartening degree of professional discourtesy”, Perram said.

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“What happened in this case should never have happened but it is not the role of this court to discipline the judges of the federal circuit court,” he wrote.

Perram said the circumstances around Street’s 75-day delay “warrant examination”.

It is not the first time Street has failed to deliver written reasons within the 21-day appeal window, or been criticised over his processes.

In the four years since he was appointed by the then attorney general, George Brandis, more than 70 of Street’s cases have been overturned. The judge has also been found to have denied procedural fairness, and to have failed to properly try cases and give proper reasons.

In the latest case, the Iranian man appeared before Street for the decision via video link from Western Australia’s Yongah Hill detention centre, without a lawyer present. He was assisted by an interpreter, but the interpreter was in Sydney. Perram said he “did not hesitate” in finding that the man “would not have been able either to understand what Judge Street was saying or to have been able to reduce what he was saying to writing”.

More than a month later the man had received no notification of Street’s reasons and contacted a Sydney solicitor, Margaret McCabe. She, “as might naturally be expected”, asked for a copy of Street’s reasons, Perram said.

“It did not occur to her that the reason the applicant did not have a written version was because the judge had failed to produce a written version,” Perram said.

“If I may say, so as to allay any concerns Ms McCabe might hold, it would not have occurred to me either.”

McCabe contacted the minister’s solicitor, who also had not received reasons and also thought it “odd”, left voicemails at Street’s chambers, and followed up with emails.

“She pointed out that the non-provision of the reasons had put the applicant in a difficult position in relation to any appeal and asked, with admirable restraint in the circumstances, when it would be that the court’s reasons might be available,” Perram’s judgment said.

“Nothing came of this, which demonstrates a disheartening degree of professional discourtesy.”

Three days later McCabe called Street’s chambers again and spoke to a staff member who said: “I am aware of your voicemail messages but we discourage calls to chambers because of the volume of matters,” according to McCabe’s notes.

The staff member said it would take “a few weeks probably” to put Street’s decision online.

“It is not clear whether he had at this point begun to settle to reasons or not,” Perram said.

Perram noted the reasons, eventually published on 2 October, were more than 54 days past the expiration of the man’s appeal window.

Perram had been asked to find a jurisdictional error, but said it was “not self-evident” that there was any legal obligation on federal circuit court judges to produce written versions of oral reasons.

“However notwithstanding [some] doubts for present purposes I am content to assume that a jurisdictional error was made once the court failed to produce the written reasons within the 21-day period,” Perram’s judgment said.

Perram said that while he was ruling against the man’s application to seek a review of Street’s decision, it was a “reasonable” application.

He said the man still had the option to apply for an extension of time to appeal, without having the original decision reviewed and retried.