Amk16 v Assistant Minister for Immigration

[2015] FCCA 2328

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMK16 v ASSISTANT MINISTER FOR IMMIGRATION [2015] FCCA 2328

Catchwords:
COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – whether Federal Circuit Court of Australia has jurisdiction under s.476 of the Migration Act 1958 (Cth) (Act) to entertain claims for constitutional writs in relation to decisions made by Assistant Minister for Immigration under s.501CA of the Act – whether the Federal Court of Australia has jurisdiction under s.476A of the Act to entertain claims for constitutional writs in relation to such decisions – whether Parliament inadvertently failed to exclude from the jurisdiction of the Federal Circuit Court of Australia conferred by s.476 of the Act decisions made by the Minister under s.501CA of the Act.

PRACTICE AND PROCEDURE – Application under s.39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) to transfer proceeding for constitutional writs in relation to decision made by Assistant Minister under s.501CA of the Migration Act 1958 (Cth) – order transferring the proceedings made.

Legislation:

Acts Interpretation Act 1901 (Cth), s.34AAB

Federal Circuit Court of Australia Act 1999 (Cth), ss.39, 40

Migration Act 1958 (Cth), ss.476, 476A(1)(a), 501(3A), 501A, 501B, 501C,

501CA

Federal Circuit Court Rules 2001 (Cth), r.8.02(4)

Applicant: AMK16

Respondent: ASSISTANT MINISTER FOR IMMIGRATION

File Number: SYG 2068 of 2015

Judgment of: Judge Manousaridis

Hearing date: 21 August 2015

Delivered at: Sydney

Delivered on: 28 August 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms K Hooper of DLA Piper

ORDERS

1. Pursuant to s.39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) proceeding No. SYG2068/2015 be transferred to the Federal Court of Australia.

2. The respondent pay his own costs of the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2068 of 2015

AMK16

Applicant

And

ASSISTANT MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks constitutional writs in relation to a decision made by the respondent (Assistant Minister) under s.501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the decision a delegate of the Assistant Minister made under s.501(3A) of the Act to cancel the Class TY Subclass 444 Special Category (Temporary) visa the applicant held until 19 January 2015.

2. The Assistant Minister now applies for an order under s.39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) that the proceeding the applicant has commenced be transferred to the Federal Court of Australia. The Assistant Minister relies on three grounds. First, although this Court has jurisdiction under the Act to entertain the applicant’s application, it was through error that Parliament failed to exclude from this Court’s jurisdiction decisions made personally by the Minister under s.501CA(4) of the Act. Second, decisions that may be made under s.501CA(4) of the Act are similar to decisions that may be made under s.501, s.501A, s.501B, s.501C of the Act. The Federal Court, not this Court, has jurisdiction in relation to decisions that may be made under s.501, s.501A, s.501B, s.501C of the Act, and the Federal Court, not this Court, therefore, should also exercise jurisdiction under s.501CA of the Act. Third, in any event, the applicant’s application is sufficiently complex to warrant the proceeding being transferred to the Federal Court.

Does the Court have jurisdiction?

1. The source of this Court’s jurisdiction to issue constitutional writs in relation to decisions made under the Act is s.476(1) of the Act. That subsection provides that this Court “has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75 of the Constitution”. Paragraph 75(v) of the Constitution provides that the High Court has jurisdiction in all matters in “which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. Thus, at the very least, this Court has jurisdiction under s.476 in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth who has made a “migration decision”. A decision made by the Assistant Minister under s.501CA(4) of the Act is a migration decision.[1] Subject to other provisions of the Act, therefore, this Court has jurisdiction to entertain the applicant’s application for constitutional writs in relation to the Assistant Minister’s decision under s.501CA(4) not to revoke the decision made under s.501(3A) of the Act to cancel the applicant’s visa.

   [1] I assume that the Assistant Minister was authorized bv the Minister in writing pursuant to s.34AAB of the Acts Interpretation Act 1901 (Cth) to exercise powers of the Minister including those conferred by s.501CA of the Act.

2. The jurisdiction that is conferred on this Court by s.476(1) of the Act is subject to exclusions; and these are listed in s.476(2) of the Act. Relevant to the application before me is s.476(2)(c) of the Act which excludes privative clause decisions, or purported privative clause decisions made personally by the Minister under s.501, s.501A, s.501B, or s.501C of the Act. Subsection 476(2) of the Act, however, does not exclude privative clause or purported privative clause decisions made personally by the Minister under s.501CA. There is no provision, therefore, that excludes from the jurisdiction conferred on this Court by s.476(1) of the Act decisions that are made or which may be made personally by the Minister under s.501CA(4) of the Act.

Does the Federal Court have jurisdiction?

1. Subsection 476A(1) of the Act identifies the Federal Court’s original jurisdiction in relation to migration decisions. It includes jurisdiction in relation to privative clause or purported privative clause decisions made personally by the Minister under s.501, s.501A, s.501B, or s.501C of the Act. Subsection 476A(1), however, does not confer jurisdiction on the Federal Court in relation to privative clause or purported privative clause decisions made personally by the Minister under s.501CA of the Act.

2. The Federal Court may, however, acquire jurisdiction over such a decision under s.476A(1)(a) of the Act. That paragraph provides that the Federal Court has original jurisdiction in relation to a migration decision if this Court, pursuant to s.39 of the FCC Act, transfers to the Federal Court a proceeding that is pending in this Court in relation to the decision. Thus, if I were to make an order under s.39 of the FCC Act transferring the proceeding the applicant has commenced against the Assistant Minister, the Federal Court will have jurisdiction to entertain the applicant’s claims.

Section 39 of the FCC Act

1. Subsection 39(1) of the FCC Act provides:

   If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.

2. Subsection 39(3) of the FCC Act provides that, when deciding whether to transfer a proceeding to the Federal Court under s.39(1), this Court must have regard to the matters identified in s.39(3) of the FCC Act. These matters are any Rules of Court that may have been made under s.40 of the FCC Act that set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Court under subsection 39(1) of the FCC Act, whether proceedings in respect of an associated matter are pending in the Federal Court, and the interests of the administration of justice.

3. Sub rule 8.02(4) of the Federal Circuit Court Rules 2001 (Cth) identifies factors the Court may take into account when considering whether to transfer a proceeding to the Federal Court. Those factors are:

   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 or the Family 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 is 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; and

   e)the wishes of the parties.

Should the proceeding be transferred?

1. There is no matter pending in the Federal Court that is associated with the proceeding the applicant has commenced in this Court. There is no evidence to suggest the proceeding is likely to involve any question of general importance, such that it would be desirable for there to be a decision of the Federal Court on that question. The Federal Court does not have available any particular procedures that are appropriate to the class of proceeding that the applicant has brought in this Court that is not available in this Court. And there is nothing to suggest that, if the applicant’s proceeding is transferred to the Federal Court, it will be heard earlier or that it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred to the Federal Court.

2. There is, however, the interests of the administration of justice to consider. The power conferred on the Minister by s.501CA of the Act is similar to the powers conferred on the Minister by each of s.501, 501A, s.501B, and s.501C of the Act. Parliament, therefore, has manifested a clear intention that the jurisdiction to entertain applications for constitutional writs against the Minister in relation to the Minister’s exercise of the powers conferred by s.501, 501A, s.501B, and s.501C of the Act should be exercised by the Federal Court, not by this Court. I am satisfied that it was through inadvertence that Parliament did not exclude from the Court’s jurisdiction under s.476(1) of the Act decisions made personally by the Minister under s.501CA of the Act; and that, had Parliament addressed its mind to the question of which Court should have jurisdiction to entertain claims for constitutional writs in relation to decisions made under s.501CA of the Act, Parliament would have provided that such jurisdiction be excluded from this Court’s jurisdiction under s.476 and conferred on the Federal Court under s.476A(1)(b) of the Act. In my opinion, it would be in the interests of the administration of justice to transfer the applicant’s proceeding to the Federal Court. The applicant’s proceeding is of a kind that Parliament has considered should be the subject of the jurisdiction of the Federal Court, not of this Court.

3. I have also taken into account the wishes of the Minister. Understandably, the applicant did not express any wish one way or the other about whether his proceeding should be transferred to the Federal Court. I have also considered the Assistant Minister’s submission that the proceeding has complexity that would warrant the matter being dealt with by the Federal Court. I am not satisfied there is any such complexity.

Disposition

1. I propose to make an order under s.39(1) of the FCC Act that the applicant’s proceeding be transferred to the Federal Court. The Assistant Minister should pay his own costs of the application, given that the applicant correctly invoked the jurisdiction of this Court.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 28 August 2015