Snap judgment: why Sandy Street’s record on asylum cases stands out | Australia news
When Martin* appeared before federal circuit court judge Alexander “Sandy” Street earlier this year, Street– as he has done many times – delivered his judgment in the case ex tempore (out of time): immediately after the hearing without retiring to deliberate.
Martin had come from Kenya on a student visa, applied for protection but was denied, and then spent 11 months in a detention centre before his appeal against the refusal of protection ended up in the federal circuit court.
“[Street] didn’t take more than 40 minutes to make the decision that my case should be dismissed,” Martin said.
Street failed to follow up with written reasons – something else he has done on multiple occasions – and as a result put Martin at risk of imminent deportation without a chance to appeal his case.
The decision in Martin’s case is one of a “pattern of decisions” in Street’s court that is causing growing concerns. More than 90 of Street’s rulings have been overturned on appeal and in at least 10 cases Street was found to have denied procedural fairness.
The day after Martin’s window to appeal had closed, Border Force showed up at his detention centre room apparently preparing to deport him.
“[The officer] told me that ‘We checked your records and there is nothing ongoing with your case,’ ” Martin said.
“I told him it’s not my fault because I was not the one making a decision. If judge Street gave the written decision on time I would have made a written appeal for my case.”
Martin said he had written to the federal court asking for the reasons but it was waiting on Street. He also called a lawyer, Alison Battison, but she could not lodge applications without the reasons.
“I said to Martin, ‘I can’t do that but maybe you’ll get reasons before the appeal period runs out,’ ” Battison told Guardian Australia. “If not then I’ll explain to Border Force what’s happened.”
Border Force knocked on his door anyway.
Martin was granted an extension under the circumstances and lodged his own appeal. Once Street published his reasons, Battison was able to seek leave to amend the application to actually address them.
“It’s more paperwork and it can be opposed by the other side,” she said.
‘A disheartening degree of professional discourtesy’
The law is family business for the Streets. Sandy is the fourth generation to sit on an Australian court bench. Two of his siblings are also judicial officers, and two of his children are in the legal profession.
Street’s father, grandfather and great-grandfather were all chief justices of the NSW supreme court. His grandmother, Jessie Street, was a suffragette and human rights campaigner.
“I’m extremely aware of the heritage every time I put on my wig and gown and every time I walk into court,” Street told the ABC documentary Dynasties in 2004.
He was appointed senior counsel in New South Wales in 1996, and with three decades of experience was appointed to the federal circuit court by the then attorney general, George Brandis, in January 2015.
A number of people in the legal sector have described Street’s role as one of efficiency, sitting on a city’s circuit court for a week or so to clear banked-up cases which otherwise might have waited a year or more to be heard.
Since his appointment he has heard and decided nearly 2,000 cases, including 842 refugee review cases. However, his work stands out not just because of his output, but because of stark differences in timings and outcomes.
Martin’s case is not an outlier.
While Street’s colleagues on the federal circuit court take an average of 60 days to hand down a judgment on refugee review cases, Street takes less than a day.
And data analysis by Macquarie University’s social justice clinic found Street gave a judgment on the same day he heard the case in 816 of the 842 refugee cases.
The data could not definitively confirm those judgments were ex tempore, but logic suggests there is little time to write the reasons up on the same day the case is heard.
The Macquarie University findings – which form part of a larger data set on the courts to be released next year – also revealed that of the 842 refugee appeals, Street found in favour of the applicant in 1.66% of cases. The average success rate of all refugee review cases over that time is 7.28%.
It was unclear whether Street’s cases were randomly assigned, but his handling of them could be creating more work, not less.
“Although he is getting through a huge number of cases, where applicants have legal representatives or are savvy enough to appeal their own decisions there’s a significant turnover rate where Street’s decisions are overturned and sent back to be reheard,” Battison said.
“So I do think it’s a false economy and not in the interest of justice.”
The chief judge, William Alstergren, has noted the “many” overturned judgments and has provided Street with “mentoring and support to assist him and support him to fulfil his duties”.
Within the cases there are numerous elements which warrant explanation.
In one case, just months after his appointment, lawyers for the minister agreed with an applicant’s request for a judicial review. Street refused to accept the request, prompting the government’s lawyer effectively to have to argue positively for the applicant. The application was still dismissed.
In another more recent case the full bench of the federal court criticised Street for not only taking nearly two months to deliver his reasons but for apparently making no effort to do so until it was requested. He also inexplicably ordered the interpreter not to translate his ex tempore judgment for the applicant.
In 2018 the full bench found Street failed to recognise “there was no logical, rational or probative basis” in a decision by the administrative appeals tribunal to refuse asylum to an Indian man because its delegate did not believe he was gay.
In a case which dismissed an application to have one of Street’s decision reviewed, the federal court nevertheless found Street’s 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”.
An avenue for independent review is needed
In response to community feedback, the Law Council of Australia has begun reviewing appeal judgments from Street “and has been concerned about the pattern of decisions that relate to the absence of procedural fairness”, its president, Arthur Moses SC, told Guardian Australia.
The council has previously expressed concern that the conduct “of some judicial officers” was detracting from the hard work by most of the judges, conducted “despite a crushing workload in an under-resourced court”.
Moses said he had been concerned “for some time” at the lack of a full-time chief judge for the federal circuit court. Alstergren oversees both the federal circuit and family courts. At the same time, the workload of circuit court judges has increased to an unsustainable level, Moses said. This was detrimental to judges’ health and the quality of justice.
Last year the circuit court introduced what it called “substantial measures to assist and support judicial officers”.
This included a more rigorous induction process, formal ongoing mentoring, closer management and monitoring of judgments, and a counselling process with judges from superior courts.
Lawyers have told Guardian Australia that long wait times for court hearings are having a negative impact on their asylum seeker clients, many of whom are detained in the interim. While having their case moved up was in many ways a blessing, appearing before Street suggested their chances of success were significantly lower.
Battison says she had not encountered late delivery of reasons from any other judge.
Although the federal court said it had a “comprehensive complaints procedure”, its website notes that it also “does not, and cannot, provide a mechanism for disciplining a judge”.
Complaints about judicial officers are dealt with by the chief judge, but the subject of a complaint, associated documents, any referral to the attorney general, and subsequent action on the complaint is confidential.
In consultation with the chief judge the attorney general may bring a complaint to the attention of parliament, which may decide to hold a commission of inquiry. The process is exempt from freedom of information laws.
“The law council has long supported the creation of a federal judicial commission to support judicial education and provide a fair, transparent and independent manner for any complaints against judicial officers to be heard and determined,” Moses said.
Calls for independent review bodies have echoed around the country, including among other chief judges.
Dr Gabrielle Appleby, a professor at the University of New South Wales law faculty, said reforms in 2012 simply provided a statutory framework for a traditional system of accountability that was not functioning properly, and did not provide for an independent body.
Appleby said there were “major issues” with transparency, with the chief judge’s ability to investigate complaints and to take action.
“They have very limited powers available to them,” she said. “The chief judge can only take action that the judicial officer involved agrees to be a part of.”
A lack of transparency was detrimental to complainants, the general public and the judges themselves who can struggle to clear their name after a complaint.
“We need at the federal level an … independent body to handle complaints against judges, a transparent process, clear powers to investigate those complaints, and a clear set of consequences for judges,” Appleby said.
In the meantime Martin has been transferred – without warning and in pre-dawn hours – to another detention centre on the other side of the country while he awaits his next hearing.
The courts agreed to the extension of time, and he will be represented by Battison.
“I am not comfortable sleeping because I feel any time they can come and handcuff me and put me on a plane,” he said.
Requests for comment to Street were referred to the federal court.