Fortunately, in the case of SZWBH we can turn to the expert legal analysis of the superior court (the Full Federal Court). SZWBH was among the fortunate minority who manage to access pro bono legal assistance for an appeal. This created the opportunity for the higher authority (the Full Federal Court) to assess the decision making of the Federal Circuit Court judge, leading to some very harsh criticisms of his conduct in summarily dismissing the case.

But the fact of the matter is that we have no idea how “the 8 other FCCA judges” would have ruled had they had the same cases. We just don’t know, do we?

Also, there is an important theoretical question buried here.

If two judges come to different conclusions in seemingly identical cases, must we then necessarily assume that one of them is wrong? There was an interesting discussion in “Law and Philosophy” (if I remember correctly) many years ago about this question and there was fair consensus that such a conclusion is invalid.

Anders

Indeed, for SZWBH, this was the real sore point. There are strict time restrictions on appealing to the court, so asylum seekers must put together their basic application very quickly. Then they gather all the documents on which they are basing their claim. These documents are often assembled by the immigration department and provided to the court after the initial hearing date. This is common practice. However, instead of giving the parties an opportunity to prepare the documents, the judge dismissed the case at the very first hearing, in just 30 minutes.

This means the judge found that the case has no reasonable prospect of success without even waiting to see all the relevant evidence. As the FFC argued, “Legal representatives who are familiar with court processes..rightly will not expect that a judge would, without notice and of her or his own motion, deprive parties to a proceeding of any further time to regularise, refine and complete the case and contentions they wish to advance.”

For an unrepresented asylum seeker this was unthinkable, hence the FFC’s criticism and remitting the case to a different FCCA judge

This test would be applied before or during a particular case, rather than after it has been completed. Of course, we can look to past cases where relevant to support our argument. While all commentators note that the use of statistical data to support a claim of apprehended bias is extremely unusual, there does not appear any explicit legal bar on doing so. See: http://www.judcom.nsw.gov.au/publications/benchbks/civil/disqualification_for_bias.html

“The mischief that would be created by the use of this type of statistical analysis is obvious, and it does not provide any cogent or rational foundation to identify conduct to which the fair-minded observer test should be applied.” (https://jade.barnet.com.au/Jade.html#article=403676)

Exactly! This is the real problem!

So it could perhaps be argued that this is an example where the participant in a position of power creates very specific rules about how communication must take place to effectively control or limit the possible outcomes.

I would argue that at the best of times, the language and the culture of the court can be intimidating and feel quite “foreign” to those interacting with it. This is without considering what happens when English is not the first language of a participant. A conference I attended earlier this year delved into some of these issues – http://languageonthemove.com/language-migration-social-justice/we-all-have-a-culture-we-all-speak-a-language-the-australian-legal-system-discusses-diversity

However, in this particular case, it has been argued by others that the judge – while putting forward a legal argument – made quite a flawed decision. This was the position of the Federal Court that overturned his decision. This was also the opinion of the lawyers of another applicant, who went so far as to argue that this particular judge demonstrated apprehended bias (ie he seemed to be predisposed to dismiss asylum seeker appeals, without actually considering them with an open mind). They argued this based on statistics of his previous decisions – see the link in my previous comment. This is a similar argument to the one being made against Dyson Heydon and why he should step down as Commissioner of the Royal Commission into Trade Unions http://www.theguardian.com/australia-news/2015/aug/17/dyson-heydon-overlooked-liberal-link-but-gave-commission-witnesses-less-leeway

Knowing near to nothing on this topic, I wonder, does the fault lie with the judge, with the interpreter, or with the legal system in general? And where does the literature say the issue needs to start being tackled?

All the best with your research! I look forward to reading more posts.
Livia

Many thanks to the colleagues who directed me towards these cases.

In another case, counsel for the applicant argued for recusal (that the judge was unqualified to hear the case, due to impartiality) based on a statistical analysis showing that an overwhelming number of other cases had been dealt with in the same way – 252 of 254 had been unsuccessful. Of these, 163 had been dismissed on the first court date. The applicant argued that these figures suggested an apprehended bias in the judge. Perhaps unsurprisingly, the judge did not accept this argument. See: https://jade.barnet.com.au/Jade.html#article=403676