Akz15 v Commonwealth of Australia & Anor and; Asp15 v Commonwealth of Australia

[2015] FCCA 2481

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKZ15 v COMMONWEALTH OF AUSTRALIA & ANOR and
ASP15 v COMMONWEALTH OF AUSTRALIA & ANOR [2015] FCCA 2481

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa.

PRACTICE AND PROCEDURE – Application to transfer proceedings to the Federal Court of Australia of Australia – whether in the interests of justice – application for transfer dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) s.39

Federal Circuit Court Rules 2001 (Cth) r.8.02

Judiciary Act 1903 (Cth) s.44

Migration Act 1958 (Cth), ss.36(2), 476A, 476B, 494AA

Plaintiff S4 of 2014 v The Minister of Immigration Border Protection [2014] HCA 34

Applicant: AKZ15

First Respondent: COMMONWEALTH OF AUSTRALIA

Second Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2163 of 2015

Applicant: ASP15

First Respondent: COMMONWEALTH OF AUSTRALIA

Second Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2164 of 2015

Judgment of: Judge Street

Hearing date: 10 September 2015

Date of Last Submission: 10 September 2015

Delivered at: Sydney

Delivered on: 10 September 2015

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Solicitors for the Applicant: Michaela Byers Solicitors

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitors

ORDERS SYG 2163 OF 2015

1. The application for transfer be heard concurrently with the application for transfer in the matter of ASP15 v Commonwealth of Australia & Anor SYG2164/2015.

2. The application for transfer is dismissed.

3. The matter be heard concurrently with the hearing in the matter of ASP15 v Commonwealth of Australia & Anor SYG2164/2015.

4. Under r.17.02 of the Federal Circuit Court Rules 2001 all questions of fact and law other than questions of causation and quantification of damages are to be heard and determined first.

5. Those questions be fixed for hearing on 8 December 2015 at 10:00am.

6. The Second Respondent to file and serve affidavit evidence identifying the alleged basis for the continuing lawful detention of the Applicant and identifying the basis of any objection to the production of documents in the appendix to the submissions on directions filed by the Applicant in the High Court of Australia of Australia on 4 June 2015 by 5:00pm on 1 October 2015.

7. The Second Respondent produce to the Applicant the documents in the said appendix which are not the subject of objection by 5:00pm 1 October 2015

8. Any dispute in relation to objections to production be heard and determined on 7 October 2015 at 9:30am

9. The Applicant file and serve a concise statement of the questions of fact and the questions of law that the Applicant seeks to agitate in the matter and precise formulation of all relief sought in the whole of the matter together with the affidavit evidence relied upon by the Applicant in respect of the questions fixed for hearing on 8 December 2015 on or before 28 October 2015.

10. The First and Second Respondents file a response to the alleged issues of fact and law identifying any other issues of fact and law which the Respondents contend arise in respect of the questions fixed for hearing on 8 December 2015 and any affidavit evidence upon which the Respondents wish to rely by 11 November 2015.

11. The Applicant file and serve any evidence on which he wishes to rely in reply on or before 25 November 2015.

12. The Applicant file and serve an outline of submissions on or before 5:00pm 27 November 2015.

13. The Respondents file and serve an outline of submissions on or before 4 December 2015.

14. Any further dispute in respect of the production of documents or proposed issue of subpoena be brought back to the Court under the liberty provisions within 7 days of that dispute if unable to be resolved by agreement between the parties and any proposed subpoena is to be the subject of communication between the parties.

15. Liberty to apply on 48 hours’ notice.

ORDERS SYG 2164 OF 2015

1. The application for transfer be heard concurrently with the application for transfer in the matter of AZK15 v Commonwealth of Australia & Anor SYG2163/2015.

2. The application for transfer is dismissed.

3. The matter be heard concurrently with the hearing in the matter of AZK15 v Commonwealth of Australia & Anor SYG2163/2015.

4. Under r.17.02 of the Federal Circuit Court Rules 2001 all questions of fact and law other than questions of causation and quantification of damages are to be heard and determined first.

5. Those questions be fixed for hearing on 8 December 2015 at 10:00am.

6. The Second Respondent to file and serve affidavit evidence identifying the alleged basis for the continuing lawful detention of the Applicant and identifying the basis of any objection to the production of documents in the appendix to the submissions on directions filed by the Applicant in the High Court of Australia of Australia on 4 June 2015 by 5:00pm on 1 October 2015.

7. The Second Respondent produce to the Applicant the documents in the said appendix which are not the subject of objection by 5:00pm 1 October 2015

8. Any dispute in relation to objections to production be heard and determined on 7 October 2015 at 9:30am

9. The Applicant file and serve a concise statement of the questions of fact and the questions of law that the Applicant seeks to agitate in the matter and precise formulation of all relief sought in the whole of the matter together with the affidavit evidence relied upon by the Applicant in respect of the questions fixed for hearing on 8 December 2015 on or before 28 October 2015.

10. The First and Second Respondents file a response to the alleged issues of fact and law identifying any other issues of fact and law which the Respondents contend arise in respect of the questions fixed for hearing on 8 December 2015 and any affidavit evidence upon which the Respondents wish to rely by 11 November 2015.

11. The Applicant file and serve any evidence on which he wishes to rely in reply on or before 25 November 2015.

12. The Applicant file and serve an outline of submissions on or before 5:00pm 27 November 2015.

13. The Respondents file and serve an outline of submissions on or before 4 December 2015.

14. Any further dispute in respect of the production of documents or proposed issue of subpoena be brought back to the Court under the liberty provisions within 7 days of that dispute if unable to be resolved by agreement between the parties and any proposed subpoena is to be the subject of communication between the parties.

15. Liberty to apply on 48 hours’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2163 of 2015

AKZ15

Applicant

And

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

SYG 2164 of 2015

ASP15

Applicant

And

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. In these two matters the Court made a direction that the application for transfer under s.39 of the Federal Circuit Court Act 1999 be heard concurrently.

2. There is a relationship between the respective applicants and a substantial degree of overlap in relation to the issues that the applicants seek to advance. The proceedings were remitted in each case to this Court pursuant to the High Court of Australia’s jurisdiction under s.44 Judiciary Act 1903 (Cth) and consistent with s.476B of the Migration Act 1958 (Cth).

3. The respective show cause applications in the High Court of Australia of Australia claim relief in the nature of a writ of mandamus.  They still have a claim to relief as follows:

   1. A writ of mandamus directing the second respondent to consider and determine the plaintiffs application for a Protection (Class XA) visa according to law.

   2. A writ of habeas corpus.

   3. Damages for false imprisonment from 14 October 2014, including aggravated and exemplary damages for the length and remoteness of the false imprisonment and the failure to provide information of the reasons for the applicant's continued detention and the resulting mental anguish and anxiety suffered by the applicant.

   4. Costs.

   5. Such other orders as the Court thinks just and necessary

   6. Interlocutory relief by the issue of a writ of habeas corpus.

4. Each applicant was the subject of a decision of the Refugee Review Tribunal in 2014 remitting the application for a protection visa with a direction that the applicant satisfied the criteria under s.36(2) of the Migration Act. The applicants wish to maintain that their continued detention is unlawful due to unreasonable delay by the second respondent in considering the determining the protection application under s.65 of the Migration Act 1958.

5. In this regard, the applicants identified the limited purposes for which detention is permitted as identified in the Plaintiff S4 of 2014 v The Minister of Immigration Border Protection [2014] HCA 34 at [26], [27]– [29] and [35]. The applicants contend that the duration of the detention in the present case, and thus its lawfulness, is one that has exceeded a reasonable period and that the applicants are entitled to appropriate relief. The applicants also maintain that the continued detention is not one for the confined purposes identified in S4 given its duration or by reason of other matters that the plaintiff seeks to prove in the case.

6. There is no issue that this Court has jurisdiction to deal with the whole of matter admitted by the High Court of Australia of Australia. It is also common ground between the parties that if this Court exercises its power under s.39 of the Federal Circuit Court of Australia Act 1999 there is a vesting of jurisdiction through 476A(1)(a) of the Migration Act conferring jurisdiction on the Federal Court of Australia of Australia to deal with the whole of the matter transferred.

7. In this case both parties support the application for transfer, albeit for differing reasons. The evidence before the Court indicates that the applicants originally commenced proceedings in the Federal Court of Australia of Australia in respect of their continued detention, but these proceedings were discontinued by reason of s.494AA. It was in those circumstances that the proceedings were then commenced in the High Court of Australia of Australia.

8. It is clear, however, pursuant to s.494AA(3) that that provision does not affect the jurisdiction of the High Court of Australia of Australia under s.75 of the Constitution and that clearly carries with it the power of the High Court of Australia under s.44 to remit the whole of the matter to the Federal Circuit Court of Australia, consistent with s.476B(1).

9. Importantly, under s.476B(4) there is a reference to subs.(1) having effect despite s.44 of the Judiciary Act 1903. Where this Court is vested with jurisdiction to determine a matter the Court should not lightly transfer the matter, albeit that the Court must have regard to the matters identified in s.39(3). The first matter to be taken into account are the rules of this Court and, relevantly in this regard, that refers to r.8.02.

10. In relation to those non-exhaustive factors in r.8.02(4) I accept that there are questions of general importance that arise in these proceedings but I am not satisfied that it would be desirable for there to be a decision of the Federal Court of Australia as opposed to the Federal Circuit Court upon the questions of general importance. In that regard, many proceedings in this Court involve questions of general importance on one or more issues and I take into account that the precise questions in this case have not yet been finalised, although they are of a kind that may well have wider application than just to the parties in these proceedings.

11. Insofar as costs and convenience are concerned, I am not satisfied that a transfer would give rise to a likelihood that the proceedings would be determined at less cost and with more convenience to the parties.  This Court is able to hear the matter in December and in that regard, the proceedings would be heard and determined in this Court at an earlier point in time than it is likely to be determined in the Federal Court of Australia.  Insofar as the particular procedure is appropriate to this matter, this Court has powers it can exercise in relation to subpoenas, discovery or notices to produce if they are appropriate.  There is no particular procedure the Federal Court of Australia of Australia has which is not possessed by this Court .

12. I take into account that the position is that both parties have requested the matter to be transferred and, as such, are the wishes of the parties. However, the legislative regime is one in which the jurisdiction is vested in this Court and I am not satisfied that the issues involve a complexity or conflict of authority or other specific question that makes it desirable for the matter to be transferred to the Federal Court of Australia of Australia. Whilst I was informed from the bar table that there are potential other matters that may be commenced in the High Court of Australia, there are no other associated matters pending in the Federal Court of Australia of Australia within s.39(3)(b).

13. I am satisfied that the resources of this Court are sufficient to hear and determine the whole of the proceedings and that the whole of the proceedings can be properly heard in accordance with the interests of the administration of justice by this Court. Moreover, in my opinion, it does not advance the interests of the administration of justice to have this Court lightly transfer proceedings back to the Federal Court of Australia in circumstances where they were originally commenced in the Federal Court of Australia and then discontinued pursuant to s.494AA.

14. It is in the interests of the administration of justice that the Court is seen to exercise its jurisdiction and that parties are not transferred between Courts unless the Court is satisfied that the order is appropriate or necessary.  Indeed, to have a transfer to the Federal Court of Australia, in circumstances where proceedings were originally commenced in that Court and then discontinued, with proceedings then being commenced in the High Court of Australia and then remitted to the Federal Circuit Court, would do little maintain public confidence in the administration of justice.  I am not satisfied that the transfer of the proceedings is appropriate of necessary. 

15. I also take into account that the Court’s powers of transfer are capable of being re-agitated if it emerges that there is a narrow, confined question and agreement on the facts that makes it appropriate to reconsider the issue of transfer.  The development in this case, appears to be a fluid state in relation to the issues and in respect of the facts.  These are matters I take into account in relation to the issue of transfer.  There are a broad category of documents potentially involving third parties that the applicants wish to agitate for production or discovery.

16. Those documents are sought for the purpose of potentially identifying other issues that the applicants may seek to agitate in the proceedings.  It is obviously preferable that this Court, being in a position to do so, determines any disputed issues of fact and is in a position to do so promptly consistent with the interests of the administration of justice.  It was suggested that the applicant’s appellate rights might be in some way adversely affected by the matter remaining in the Federal Circuit Court.  I do not accept that proposition nor do I accept that there would be an increase in costs by reason of the matter being determined in this Court in relations to any appellate process.

17. The application for transfer is dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 22 October 2015