Cla15 v Minister for Home Affairs

[2018] FCCA 1496

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLA15 v MINISTER FOR HOME AFFAIRS [2018] FCCA 1496

Catchwords:
PRACTICE AND PROCEDURE – Application in a case for recusal and/or for transfer – it is the duty of the Court to hear ad determine matters allocated to the Court docket – no proper basis for the Court to recuse itself – no proper basis identified to transfer the matter – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48B, 476

Applicant: CLA15

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1193 of 2018

Judgment of: Judge Street

Hearing date: 4 June 2018

Date of Last Submission: 4 June 2018

Delivered at: Sydney

Delivered on: 4 June 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:  Ms H Dejean
Australian Government Solicitor

ORDERS

1. The application in a case is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1193 of 2018

CLA15

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for recusal of the Court and/or for transfer to another docket. These proceedings were commenced on 24 April 2018 in circumstances where the applicant is seeking to challenge a migration decision purportedly made on 5 April 2018. The affidavit in support identifies that it was filed in support of the proceedings commenced in this Court due to a document identifying the refusal to engage in Ministerial Intervention dated 5 April 2018.

2. In response to the proceedings that were commenced, the respondent filed a notice of objection to competency on 18 May 2018. Relevantly, that notice identified, that the letter sent on 5 April 2018 informing the applicant that the request for Ministerial Intervention under s 48B of the Migration Act 1958 (Cth) (“the Act”) was finalised without referral to the respondent is not a migration decision within the meaning of the Act and is not the subject of jurisdiction conferred on this Court under s 476 of the Act. 

3. Where an issue is raised as to competency in respect of jurisdiction, it is generally appropriate for the Court to determine that matter first. This Court made orders on 22 May 2018 providing for the hearing of the jurisdictional challenge and giving the applicant an opportunity to file any application the applicant wished to make returnable before this Court today.

4. The applicant has filed the application for recusal and transfer. In support of the application for recusal and transfer, the conduct identified by the applicant is the earlier decision of this Court involving the applicant in proceedings which were the subject of orders on 22 November 2017 dismissing the application. They were proceedings brought from a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 23 March 2017 which found the Tribunal had no jurisdiction. 

5. The adverse decision on the application for a Constitutional writ involving legal issues as to whether there was any relevant jurisdictional error in the finding by the Tribunal that it had no jurisdiction does not give rise to conduct by reason of which a fair-minded lay observer might reasonably apprehend this Court might not bring an independent and impartial mind to the determination of the matter on its merits. 

6. Nothing has been identified by the applicant as to why this Court would do other than approach the Court with an open mind reasonably capable of persuasion as to the merits. The duty of the Court is to hear and determine matters listed in its docket and importantly, where there is a jurisdictional issue, it is the duty of the Court to determine that issue promptly. The Court does not select the cases allocated to the Court docket and it is the duty of the Court to hear and determine matters allocated in the ordinary course of the administration of the Court. There is no proper basis for the Court to recuse itself, and no proper basis identified to transfer the matter.

7. Accordingly, the application in a case dated 1 June 2018 is dismissed. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 September 2018