Ayaad v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1112
•29 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ayaad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1112
File number: MLG 998 of 2023 Judgment of: JUDGE FORBES Date of judgment: 29 October 2024 Catchwords: MIGRATION – practice and procedure – judicial review of decision of Administrative Appeals Tribunal refusing grant of Business Skills visa – separate application in Federal Court seeking relief under s 39B of the Judiciary Act – where applications in relation to same Tribunal decision – where applications relate to different exercises of power – application for transfer of judicial review proceeding to Federal Court – mandatory consideration of matters relevant to the transfer – whether transfer in the interests of the administration of justice – application for transfer granted Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 153
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 351 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 8.02
Migration Regulations 1994 (Cth) cl 892.212
Cases cited: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Djokovic v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 7
DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 22 October 2024 Place: Melbourne Counsel for the Applicants: Mr Murphy Solicitor for the Applicants: Crossover Law Counsel for the Respondents: Mr Farhall Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
MLG 998 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDELMESSIEH NOSHY KAMEL AYAAD
First Applicant
MARY MELLAD NESEM MEKAEL
Second Applicant
KEROLOS ABDELMESSIEH NOSHY KAMEL (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the proceeding be transferred to the Federal Court of Australia.
2.The costs of and incidental to this interlocutory application be reserved.
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
JUDGE FORBES
INTRODUCTION
The substantive proceedings before the Court concern an application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 May 2023.
These reasons concern an application by the applicants for an order under s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) for these proceedings to be transferred to the Federal Court of Australia.
In summary, the applicants submit that the transfer is in the interests of the administration of justice because it will bring together proceedings in this Court with extant proceedings in the Federal Court which arise out of the same Tribunal decision. The applicants submit that the proceedings in the two courts are closely and inextricably interrelated and that case management considerations weigh heavily in favour of the transfer.
The Minister opposes the application. The Minister concedes that the two applications emanate from the same Tribunal decision, but says that each proceeding relates to a different source of executive power and that the issues should be determined in the courts in which the proceedings were commenced.
For the reasons set out below, I am satisfied that it is in the interests of the administration of justice for the judicial review proceedings in this court to be transferred to the Federal Court of Australia.
BRIEF BACKGROUND
The first applicant is the primary applicant for a Business Skills (Residence) States/Territory Business Owner visa. The other applicants are family members whose visa applications depend on the primary applicant meeting the necessary criteria for the grant of the visa.
On 2 May 2023 the Tribunal affirmed a decision of a delegate to refuse the applicants’ visa application.
The Tribunal found that the primary applicant did not satisfy the visa criterion set out in cl 892.212 of the Migration Regulations 1994 (Cth). Specifically, the Tribunal found that the applicant failed to meet the requirements that:
(a)his business employed at least one full-time employee who was an Australian citizen, permanent resident or New Zealand passport holder who was employed for a period of 12 months ending immediately before the application was made (cl 892.212(a)); and
(b)the applicant’s share of business assets had a net value of $75,000 and was held throughout the 12 month period ending immediately before the application was made (cl 892.212(c)).
The Tribunal also considered a request by the applicant for his visa application to be referred to the Minister for the exercise of the Minister’s personal powers under s 351 of the Migration Act 1958 (Cth) (the Migration Act). The Tribunal took into account the applicants’ written submissions and the “Minister’s Guidelines on Ministerial Powers (s 351, s 417 and s 501J)” (Ministerial Guidelines) but was not satisfied that the case exhibited unique or exceptional circumstances that warranted referral to the Minister.
Application to the FCFCOA
On 2 June 2023, the applicants filed an application under s 476 of the Migration Act seeking judicial review of the Tribunal’s decision.
The single ground of review contends that the Tribunal erred by considering an incorrect period in which to assess cl 892.212(a) and (c). The applicants will argue that the period for the assessment for the relevant visa criteria is the period of 12 months ending immediately before the application was made (ie. 7 March 2017 - 7 March 2018), not the period nominated by the Tribunal (1 January 2017 - 31 December 2017).
The application to this Court for judicial review foreshadowed the commencement of separate proceedings in the Federal Court in relation to the Tribunal’s decision not to refer the applicants to the Minister for the potential exercise of the power in s 351 of the Migration Act. The application also foreshadowed that an application would be made for the proceedings in this Court to be transferred to the Federal Court pursuant to s 153.
Save for case management orders relating to the application for transfer, no orders have been made for the progression of this matter to a final hearing.
Application to the Federal Court
On 6 June 2023, the applicants lodged the foreshadowed application in the Federal Court. In that proceeding the applicants contend that following the High Court decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the Tribunal erred by considering the Ministerial Guidelines. The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) including that the Tribunal’s decision be quashed.
The application to the Federal Court drew attention to the related proceedings in this Court and indicated that the applicants had sought an interlocutory order from this Court transferring the proceedings to the Federal Court.
Relevantly, on 14 November 2023, a registrar of the Federal Court made timetabling orders in chambers for the progression of the matter to a final hearing. No date has yet been fixed for a final hearing, but I am informed that the matter has been docketed to Justice Hespe.
The transfer application
The application for transfer of these proceedings to the Federal Court was heard on 22 October 2024. Mr Murphy of counsel appeared on behalf of the applicants and Mr Farhall represented the Minister.
Prior to the hearing both parties filed written outlines of submissions which addressed their respective positions in relation to the transfer application. The applicants also filed and relied upon an affidavit of Marial Lewis which annexed various documents, including the Tribunal decision and orders made in the Federal Court proceedings. The parties developed their submissions orally at the hearing.
STATUTORY FRAMEWORK
Section 153 of the FCFCOA Act confers a discretionary and qualified power in this Court to transfer a proceeding to the Federal Court of Australia. Relevantly, s 153 provides as follows:
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 of Australia (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.
(5)The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it considers necessary pending the order transferring the proceeding being confirmed by the Federal Court.
(6)An appeal does not lie from a decision of the Federal Circuit and Family Court of Australia (Division 2) in relation to the transfer of a proceeding under this section.
(7)This section does not apply to proceedings of a kind specified in the regulations.
Section 153(3) requires the Court to have regard to any relevant rules of the Court made for the purposes of s 154. In that respect, rule 8.02(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provides:
(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.
SUBMISSIONS
Both the applicant and the Minister properly directed their written and oral submissions to the mandatory considerations which frame the exercise of my discretion. Of those considerations, some weigh in favour of the proceeding being transferred and others press in the other direction. However, on balance, I consider the arguments in favour of transfer to be the more compelling.
There are a number of matters about which there is no contest. There is general agreement between the applicant and the Minister that:
(a)the applications before the FCFCOA and the Federal Court emanate from the same Tribunal decision and share a common factual substratum;
(b)the same 1000-page Court Book will be relevant to both matters;
(c)the two applications involve different sources of power. The application in this Court is brought under s 476 of the Migration Act to review the lawfulness of the Tribunal decision, in particular the Tribunal’s application of the relevant criteria for the grant of a Business Skills (Residence) States/Territory Business Owner visa. The application brought before the Federal Court under s 39B of the Judiciary Act relates to the Tribunal’s discretionary power to consider whether to refer a matter for ministerial intervention;
(d)although the proceedings relate to separate sources of power, the proceedings are connected and require sequential determination. It is agreed that the s 476 proceeding should logically be determined first because if the applicant is successful and the visa application is remitted, there may be no requirement to press for s 39B relief;
(e)in the ordinary course, the proceeding in the Federal Court is most likely to be heard earlier than the application in this Court. The Federal Court matter has been docketed to a judge and case management orders have already been made to bring the matter to trial (although no trial date has been allocated);
(f)the judicial review proceeding in this Court does not raise questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on the issues raised therein;
(g)if the matter in this Court is transferred, the two proceedings can comfortably be heard by the Federal Court judge in one day;
(h)there will be efficiencies and costs savings if the matters are heard in one court. There will be one hearing, one brief fee and one course of preparation; and
(i)if the matter in this Court is not transferred, it will be necessary for steps to be taken to stay the proceeding in the Federal Court.
In support of the application of the transfer, the applicant unsurprisingly points to the efficient use of judicial resources and the minimisation of expense to the parties of a multiplicity of proceedings in different courts. The applicant submits that if the two proceedings are heard separately, it will require a duplication of intellectual effort and expenditure of time by judicial officers and two days in court rather than one.
Furthermore, the applicant contends that the two proceedings are inextricably linked by their common factual basis and, notwithstanding they raise separate legal questions, the legal issues are logically argued together and bear on each other. The applicant submits that it is inherently desirable to have a single court pronounce upon the lawfulness of closely related (albeit separate) exercises of executive power. This is particularly so where the arguments to be advanced in separate Courts might be considered alternatives.
The Minister’s opposition to the transfer application is principled.
First, the Minister accepts that the two proceedings are related, but not closely so. The proceedings are brought under different statutory schemes, namely s 476 of the Migration Act and s 39B of the Judiciary Act. The Minister submits that the courts will be required to individually consider each application.
Secondly, the Minister submits that there is an express legislative intent for judicial review applications to be heard in the first instance by the FCFCOA. In circumstances where the s 476 application might be described as a “typical” judicial review application, the Minister contends that there are no special circumstances why the court should not proceed to determine it.
Thirdly, and relatedly, the Minister submits that the FCFCOA should determine the judicial review application first because the Ministerial intervention issue only arises if the Tribunal decision is affirmed. That is, any consideration of whether or not to refer the applications to the Minister can only arise after a lawful decision has been made to affirm the delegate’s decision not to grant a visa[1]. Transfer of the judicial review application to the Federal Court would, in the Minister’s submission, supplant the jurisdiction of this court.
[1] DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704 at [85]
Fourthly, the Minister submits that issues related to cost and efficiency must be considered and balanced against the fact that the judicial review proceeding in its ordinary course would be determined by the FCFCOA as intended by Parliament. The Minister submits that the administration of justice is best served by the proceedings remaining in the court to which the legislature conferred the High Court’s original jurisdiction.
Although the Minister concedes that, on balance, the two proceedings are more likely be heard earlier in the Federal Court (assuming a transfer of the FCFCOA proceeding), that is not sufficient reason of itself for there to be a transfer. The Minister submits that issues of timetabling proceedings between courts can be resolved.
CONSIDERATION
Having regard to the matters that I am required to consider under s 153 of the FCFCOA Act and the Rules, I am persuaded that it is in the interests of the administration of justice for the proceedings in this court to be transferred to the Federal Court.
Foremost among the relevant considerations is the fact that there are extant proceedings in the Federal Court to which the application in this Court can be logically and conveniently joined. The ordinary principles as to the efficient use of judicial resources[2] weigh in favour of the transfer. It cannot, in my view, be consistent with the objective of quelling disputes quickly, efficiently and cost effectively for there to be two separate hearings on separate days before different judicial officers in different courts.
[2] Djokovic v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 7 at [70]
It is relevant that what is, in effect, one dispute in relation to a visa application cannot be completely determined in other court. Although I accept it is possible for both proceedings to run in parallel, it is not logical that they do so. The most efficient and effective use of judicial resources is for the Tribunal decision to be subject to scrutiny in one hearing and for the alleged judicial error and excess of power to be argued in a manner which will present the presiding judge with an opportunity to finally dispose of both.
I note the principled basis on which the Minister opposes the application for transfer and I accept that in the ordinary course “typical” applications for judicial review of Tribunal decisions should be dealt with in this Court. However, the application in this Court is not “typical” because it is necessarily tied to another proceeding in another Court involving the same administrative decision. Furthermore, the applicant has made it known from the commencement of the FCFCOA proceeding that it would be making a separate application to the Federal Court and that it would seek a transfer of these proceedings.
There are occasions where common practice must yield to the objectives expressed in the overarching obligations which guide case management in the Court. Even though it is accepted by both parties that the FCFCOA has the resources and jurisdiction to determine the judicial review application and that there is no special question of general importance that requires it to be transferred to the Federal Court, those considerations are outweighed by the cost and efficiency factors I have referred to above. In my view, the interests of the administration of justice will be better served by the most efficient use of judicial resources and minimising the cost of the proceedings, including to the taxpayer.
DETERMINATION
For the reasons set out above, I will order pursuant to s 153(1) of the FCFCOA Act that the proceedings in matter no. MLG998/2023 be transferred to the Federal Court of Australia.
I consider it appropriate that the parties’ costs of this interlocutory application be reserved to the Federal Court judge who hears this matter on a final basis.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 29 October 2024
SCHEDULE OF PARTIES
MLG 998 of 2023 Applicants
Fourth Applicant:
CLARA ABDELMESSIEH NOSHY KAMEL
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