Anderson v Minister for Immigration

[2017] FCCA 940

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDERSON v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 940

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Assistant Minister’s personal decision pursuant to s.501CA(4) – Parliament’s real intention to have such decisions judicially reviewed in the Federal Court of Australia rather than the Federal Circuit Court - application to transfer to Federal Court pursuant to s.39 of Federal Circuit Court Act 1999 (Cth) – in the interests of the administration of justice that the proceeding be transferred to the Federal Court and application to that end granted.

Legislation:

Migration Act 1958 (Cth), s.501CA

Federal Circuit Court of Australia Act 1999 (Cth), s.39
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

AMK16 v Assistant Minister for Immigration (2015) 299 FLR 338
Tusitala v Assistant Minister for Immigration and Border Protection (2015) 304 FLR 246
Wozniak v Assistant Minister for Immigration [2016] FCCA 1918

Applicant: DANIEL FREDERICK ANDERSON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ASSISTANT MINISTER MP

File Number: SYG 830 of 2017

Judgment of: Judge Dowdy

Hearing date: 5 May 2017

Delivered at: Sydney

Delivered on: 5 May 2017

REPRESENTATION

The Applicant appeared in person by videoconference.

Counsel for the Applicant Respondents: Ms K Hooper

Solicitors for the Applicant Respondents: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. That the Minister for Immigration and Border Protection be removed as first respondent to the proceeding.

2. That the remaining respondent to the proceeding be amended to read “Assistant Minister for Immigration and Border Protection”.

3. That this proceeding in the Federal Circuit Court of Australia be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth) because it is in the interests of the administration of justice that it be so transferred.

4. That the directions hearing listed for today in this Court be vacated.

5. That the costs of the proceeding in this Court and on the Application in a Case for transfer to the Federal Court be the costs of the proceeding in the transferred Federal Court of Australia proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 830 of 2017

DANIEL FREDERICK ANDERSON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ASSISTANT MINISTER MP

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. In this matter on 14 February 2017 the Assistant Minister for Immigration and Border Protection personally decided not to revoke the cancellation of the visa of the applicant, namely Daniel Frederick Anderson, on character grounds under section 501CA(4) of the Migration Act 1958 (Cth). Mr Anderson wants to challenge that decision by way of judicial review, and on 20 March 2017 he filed an application in this Court which basically seeks an injunction directed to the Minister for Immigration not to remove him from Australia until his case is heard, and an order that the decision of the Minister be quashed. He filed an affidavit in support of that application. There is no doubt that this Court has jurisdiction to hear Mr Anderson’s application, but it is also clear that character decisions made personally by the Minister for Immigration or the Assistant Minister are matters that Parliament really intended to be dealt with in the Federal Court of Australia rather than in this Court. I am not going to burden my judgment with an analysis of the relevant cases, authorities and principles for it suffices for present purposes that I indicate that the relevant principles under which I act and determine the Application in a Case (referred to below) are found in the decisions of Wozniak v Assistant Minister for Immigration [2016] FCCA 1918, Tusitalav Assistant Minister for Immigration and Border Protection (2015) 304 FLR 246 and AMK16 v The Assistant Minister for Immigration (2015) 299 FLR 338. I propose to act on the principles discussed in those cases.

2. The Minister wants the matter transferred to the Federal Court under section 39 of the Federal Circuit Court of Australia Act1999 (Cth) and rule 8.02 of the Federal Circuit Court Rules 2001 (Cth). To that end, the Minister filed an Application in a Case on 13 April 2017 on which he moves today, together with an affidavit of Ms Hooper which has been read in support of the Application in a Case.  Mr Anderson has appeared by video link from Christmas Island and has articulated a particular reason for why he wants the matter to remain in this Court, namely further avenues for appeal. However, it seems to me that the reason is misconceived and he is not going to suffer any type of legitimate or proper disadvantage if this matter is transferred to the Federal Court rather than remaining in this Court. I have explained that to him in the video conference.

3. The short point is that I do regard it as being in the interests of the administration of justice that Mr Anderson’s application be heard in the Federal Court of Australia, and I propose to make an order to that effect. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     10 May 2017