CFM17 v Minister for Immigration - [2018] FCCA 649

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFM17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 649

Catchwords:
MIGRATION – Application to transfer initiating application from Federal Circuit Court of Australia to the Federal Court of Australia – elements of s.39(3) of the Federal Circuit Court of Australia Act 1999 considered – elements of r.8.02(4) of the Federal Circuit Court Rules 2001 considered.

PRACTICE AND PROCEDURE – Application to transfer an application for judicial review of a migration proceeding.

MIGRATION – Part 7AA of the Migration Act 1958 – cases at intermediate appellate level that have considered that part since Part 7AA was introduced in March 2018.

VENUE TRANSFER – Application refused.

Legislation:
Federal Circuit Court of Australia Act 1999, sub-ss.39(1), (3)
Migration Act 1958, ss.5H(1), 36(2)(a), 36(2)(aa), 473DC(1)(a), 473DD, 476, 476A, 484
Federal Circuit Court of Australia Rules 2001, r.8.02(4)

Other Materials:

Commonwealth, Parliamentary Debates, House of Representatives, 10 March 2005, 3 (the Honourable Phillip Ruddock MP)
Explanatory Memorandum, Migration Litigation Reform Bill 2005
Explanatory Memorandum, Migration Reform Bill 1992
Nicholas Poynder, ‘Judicial Review -- General Principles’, Judicial Review commentary (April 2017)

Applicant:

CFM17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 1085 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

19 January 2018

Date of Last Submission:

19 January 2018

Delivered at:

Melbourne

Delivered on:

19 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr E M Nekvapil

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr C Tran

Solicitors for the First Respondent:

Spark Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Spark Helmore

ORDERS

The applicant’s application to transfer this proceeding from the Federal Circuit Court of Australia to the Federal Court of Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 649
Decision Date: 19 March 2018

CaseChat Overview and Summary

The applicant, CFM17, sought to transfer their application for judicial review of a migration decision from the Federal Circuit Court of Australia to the Federal Court of Australia. The Minister for Immigration was the respondent.

The central legal issue before the Court was whether the criteria for transferring the proceeding under section 39(3) of the *Federal Circuit Court of Australia Act 1999* (Cth) and rule 8.02(4) of the *Federal Circuit Court Rules 2001* (Cth) were met. Specifically, the Court had to consider whether the proceeding involved a question of general importance or whether it was in the interests of justice to transfer the matter.

His Honour Judge Wilson reasoned that the applicant had not demonstrated that the proceeding involved a question of general importance. While acknowledging the significance of Part 7AA of the *Migration Act 1958* (Cth) and the body of case law that had developed since its introduction, the Court found that the specific issues raised in CFM17's application did not present a novel or broadly significant legal question that warranted consideration by the Federal Court at this stage. Furthermore, the Court was not persuaded that transferring the matter was in the interests of justice, finding that the Federal Circuit Court was capable of adequately determining the application. Consequently, the application to transfer the proceeding was refused.

Orders