Almassri v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1022
•11 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Almassri v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1022
File number: MLG 1439 of 2024 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 11 October 2024 Catchwords: MIGRATION LAW – PRACTICE AND PROCEDURE – interlocutory application for transfer to the Federal Court of Australia – where applicant seeks transfer in order to challenge adverse assessment by ASIO – transfer application opposed by Minister – whether the transfer is in the interests of the administration of justice – where this court has no jurisdiction to hear the challenge to the ASIO assessment – transfer order made Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 153
Migration Act 1958 (Cth) s 128
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 8.02(4)
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submissions: 4 October 2024 Date of hearing: 4 October 2024 Place: Melbourne Counsel for the Applicant: Mr S Sharify Solicitor for the Applicant: Zarifi Lawyers Solicitor for the Respondent: Mr D Brown of the Australian Government Solicitor ORDERS
MLG 1439 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FATMA ALMASSRI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
11 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to section 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and rule 8.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), proceeding MLG1439/2024 be transferred to the Federal Court of Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an interlocutory application for the transfer of this proceeding to the Federal Court of Australia (‘the Federal Court’) pursuant to s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’).
BACKGROUND
The applicant is a 69-year-old woman from Gaza who has commenced proceedings in the Federal Circuit and Family Court of Australia (‘the FCFCOA’) (Division 2) by which she seeks judicial review of a decision of the Minister to cancel her visitor visa.
The applicant was granted a visitor visa on 28 November 2023, which required her to enter Australia within 12 months of that date.
On 15 April 2024, prior to the applicant’s arrival in Australia, a delegate of the Minister cancelled her visa pursuant to s 128 of the Migration Act 1958 (Cth). The visa was cancelled on the basis of an adverse assessment by the Australian Security Intelligence Organisation (‘ASIO’)(‘the Assessment’), made the same day.
In her application for judicial review to this court, the applicant has identified one ground of review. In that application, the applicant also sought an urgent interlocutory order for the transfer of the proceeding to the Federal Court under s 153 of the FCFCOA Act (‘Transfer application’). I heard submissions from the parties in relation to the Transfer application on 4 October 2024.
In support of the Transfer application, the applicant states that she also wishes to claim relief against the Director General of Security for the Assessment, in respect of which this court has no jurisdiction.
The applicant submits that the challenge to the Assessment and the challenge to the Minister’s cancellation decision are linked as she submits that if the Assessment is quashed, the cancellation upon which it is based must also be quashed.
PROCEEDINGS IN THIS COURT
A court book was filed by the respondent on 3 September 2024, containing all relevant material in the matter. Submissions were filed by the respondent and applicant on 27 September 2024 and 3 October 2024 respectively.
The matter came before me for interlocutory hearing on 4 October 2024, where counsel appeared on behalf of the applicant and a representative for the respondent appeared. Oral submissions were made and judgment in respect of the Transfer application was reserved.
RELEVANT LEGISLATION
Section 153 of the FCFCOA Act permits the court to transfer a proceeding to the Federal Court. It relevantly provides as follows:
153 Discretionary transfer of proceedings
(1)If:
(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and
(b) the proceeding is not a family law or child support proceeding;
the Court may, by order, transfer the proceeding from the Court to the Federal Court.
(2)The Federal Circuit and Family Court of Australia (Division 2) may transfer a proceeding:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3)In deciding whether to transfer a proceeding to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
(a) any Rules of Court made for the purposes of subsection 154(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit and Family Court (Division 2) are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4)If an order is made under subsection (1), the order takes effect on the day that the order is confirmed by the Federal Court under section 32AD of the Federal Court of Australia Act 1976.
…
Rule 8.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) relevantly provides that:
…
(4)In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;
(c)whether the proceeding will be heard earlier in the Court;
(d)the availability of particular procedures appropriate for the class of proceeding.
(e)the wishes of the parties.
…
In the present matter, the issue of particular importance – and which arises from the submissions made by the parties – is whether it is in the interests of the administration of justice to transfer the proceeding.
The applicant submits that it is in the interests of the administration of justice for the current application to be transferred to the Federal Court in circumstances where:
(a)the FCFCOA has no jurisdiction over the decision made by ASIO; and
(b)the Federal Court has no jurisdiction over the cancellation decision made by the Minister, unless the application seeking to challenge that decision is transferred to it.
Whilst at this stage, the applicant has not filed proceedings in the Federal Court challenging the Assessment by ASIO, the applicant has indicated that it is her intention to do so.
If the transfer is granted, the applicant could seek to amend the current proceedings accordingly and the Federal Court would have the jurisdiction to deal with both the challenge to the Assessment and to the Minister’s cancellation decision.
It is submitted that it would be in the interests of the administration of justice for all controversies arising from and related to the cancellation decision to be dealt with in the same court.
The applicant also referred to another proceeding filed in this court, in which similar issues arose and in which the parties consented to a transfer to the Federal Court and orders were made accordingly.[1] I note that in Imad, the applicant had, albeit incorrectly, issued proceedings seeking to challenge an ASIO assessment in the FCFCOA (Division 2) as well as the cancellation decision. In that instance, the Minister consented to the proceeding being uplifted in its entirety to the Federal Court.
[1] See Imad v Director General of Security and Minister for Immigration, Citizenship and Multicultural Affairs (‘Imad’) (MLG1149/2024), which order was confirmed by order of the Federal Court of Australia made 5 June 2024.
The Minister opposes the transfer of the matter to the Federal Court in the present case, submitting that the only application currently before the court is one in respect of which this court has jurisdiction.
The Minister submitted that it is also open to this court in determining the Transfer application to consider the prospects of success of the challenge to the cancellation decision, which it states are weak in circumstances where the delegate was obliged to make the decision that it did due to the Assessment by ASIO.
CONSIDERATION
In this case, the applicant has indicated from the time of filing the initiating application, her intention to seek to challenge both the cancellation decision and the Assessment. That can only be done concurrently if the proceedings presently before this court are transferred to the Federal Court and leave is sought and granted to join another party and amend the proceedings.
Given the interrelationship between the Assessment and the Minister’s cancellation decision, the administration of justice would be served by the applicant’s challenge to each of those decisions being heard contemporaneously. That, for the reasons discussed earlier, necessitates a transfer of the cancellation decision to the Federal Court.
CONCLUSION
For the reasons above, I make the orders set out at the commencement of these reasons.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 11 October 2024
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