Gentlemen, please

Touchy war of words between the upper and lower stratas of the federal judiciary ... Raphael v Perram; Perram v Raphael ... It’s a matter of tone ... Alix Piatek reports

"Any views that I may have as to the tone of Perram J’s remarks will be kept to myself until my retirement in 2014."

So said Federal Magistrate Kenneth Raphael. 

Madge (now a freshly plumed judge of the Federal Circus Court) Raphael and Justice Nye Perram has been going at it in refugee cases for over three years.

The magistrate attracted criticism from Perram when in 2007, during a review of a protection visa decision in SZJBD v Min for Immigration, he refused to listen to a tape recording offered as evidence of the tribunal's bias and misconduct by an interpreter.

There was an appeal to the Federal Court where Justice Antony Siopis sent it back to the magistrate, saying the new evidence should have been admitted.

Raphael thought there was too much contradictory authority from higher-up for him to hear the matter.

In 2009 it went to the Full Feds, where Nye-Nye let fly.

"In my opinion, there could thereafter be no circumstances which could justify the federal magistrate in refusing to listen to the tape. It is not open to a court lower in the judicial hierarchy to disobey a determination of an appellate court in that manner ..."

Further, Raphael was said to be confused.

"With respect to the federal magistrate, he appears to have confused the result in the appeal from his own decision with a precedent. It was not a precedent - it was a determination of the very issue before him and he was bound to implement it without further consideration."

And a time waster. 

"In the event, the time of three judges of this court has been unnecessarily spent listening to the tape which should have been listened to by the federal magistrate. Had it been listened to, it would have been quite plain that the claim made by the applicant was without substance. That, in turn, would have averted two half days of this court and the needless engagement of pro bono counsel."

Ouch ... a big, pink, magisterial bottom.

So we come to April last year and a different Chinese refugee case and another tape recording. In SZQVN v Min for Immigration the Madge had to decide whether to listen to a tape recording prior to the court hearing.

"In the past, I have taken the view that where claims relating to interpretation are made, they should be supported by evidence, indeed they should be supported by expert evidence of another translator, and that it is no part of the court’s duty to listen to the tape and try and divine for itself whether or not some errors have occurred. I had thought that that view of the law was orthodox, but it appears that I may be mistaken."

Then the cheeky bit:

"Any views that I may have as to the tone of Perram J's remarks will be kept to myself until my retirement in 2014."

Time is ticking by. It's now only 14 months until Justinian will be in touch with Mr Raphael, after his 70th birthday on July 2.