3 April 2019

CQX18 is the boat identification of an Iranian man, who applied for a visa in March 2018. This request was rejected, and that decision was reaffirmed in April. He appealed that decision in the Federal Circuit Court in July 2018. Judge Street heard the Iranian man’s appeal that day. Judge Street ruled against him, and ordered him to pay the Minister’s costs of $7328. Judge Street delivered his ruling orally. This presented a significant challenge to the Iranian man. He was not in the courtroom, but connected by video link from Yongah Hill Immigration Detention Centre.

The Iranian man does not speak good English, and did not understand the reasons his appeal was rejected. In August, he contacted a lawyer, Ms McCabe. McCabe asked why the appeal was rejected, only to find her client did not know either. She could not find the judgment online, so she repeatedly phoned and emailed the court registry and the associate of Judge Street. On 21 September, she sent an email to the Judge’s chambers, observing that this put her client at a considerable disadvantage in appealing his decision. No reply was received.

On 24 September, McCabe finally spoke to Judge Street’s associate on the phone. This person said it would take “a few weeks probably” for the decision to be published on the internet. She would not be able to obtain it then, “because the written reasons haven’t been settled”. It appears the reasons were settled in writing on 28 September, and publicly available on 2 October, some 54 days after the period when the Iranian man was able to appeal the decision. The appeal was supposed to be lodged within 21 days. It took 75 days for the reasons to be published. Judge Street could have “easily” made an order extending the time in which an appeal could be brought. He did not do so. He could also have suspended the court’s orders until the written reasons were produced – he did not do this either.

Justice Perram from the Federal Court found that Judge Street made a “jurisdictional error” in failing to produce the written reasons within 21 days. However, he did not grant the relief sought by the Iranian asylum seeker, and dismissed the application with costs. The asylum seeker now has the right to apply for leave to appeal the original court decision out of time. The whole case seems an extraordinary illustration of the terrible struggles faced by asylum seekers, doing their best to navigate an alien and foreign language justice system.

Michael Brull

Policy Lawyer

NSW Council for Civil Liberties