CYT20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 450
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYT20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 450
File number(s): MLG 1451 of 2023 Judgment of: JUDGE EGAN Date of judgment: 17 May 2024 Catchwords: PRACTICE AND PROCEDURE – where an application for transfer of the proceeding to the Federal Court was made – where it was submitted by Counsel for the applicant that notwithstanding the existence of a binding judgement of the Federal Court directly on point regarding Ground 1 of the Application for Review (a judgement which was adverse to the applicant’s case) the issue was nonetheless contentious, thereby justifying transfer on the basis that the issue involved a question of general importance – where this Court would not endorse or enable “Judge-shopping” or “Forum-shopping” - where the application was an abuse of this Court’s process – application dismissed. Legislation: Federal Circuit and Family Court of Australia Rules 2021 (Cth), r. 8.02 Cases cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 301
Rogers v R (1994) 181 CLR 251
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 16 May 2024 Date of hearing: 16 May 2024 Place: Melbourne Counsel for the Applicant: Ms J. Zhou of Counsel Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondent: Mr M. Hosking of Counsel Solicitor for the Respondent: Mills Oakley ORDERS
MLG 1451 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYT20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
1.The Application for Transfer of the Proceeding to the Federal Court of Australia, as sought in the Application for Review filed on 14 August 2023, be dismissed.
2.The Applicant pay the Respondent’s costs of and incidental to the Application for Transfer as agreed, or failing agreement, to be assessed on a party/party basis.
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 EGAN
INTRODUCTION
In an Application for Review filed on 14 August 2023, the applicant sought an order that the proceeding be transferred to the Federal Court of Australia pursuant to the provisions of r. 8.02 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (the Rules).
The application for transfer was opposed by Counsel for the Respondent Minister.
Rule 8.02 of the Rules relevantly provided as follows:
Rule 8.02
Transfer to Federal Court
(1) The Court may, at the request of a party or on its own initiative, transfer a proceeding to the Federal Court.
(2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.
(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.
It is of note that r. 8.02(4)(a) of the Rules provided that the desirability of there being a decision of the Federal Court “on one or more of the points in issue” was a factor to be taken into account when a Court considered whether it should make an order for transfer.
It was submitted on behalf of the applicant, by Ms Zhou of Counsel, that “because of the contentious nature of” the construction of sub-reg 2.20(17)(c) of the Regulations, it was desirable for the proceeding to be transferred. That submission was made in circumstances where Counsel, and her instructing lawyers, well knew that there was already a decision of the Federal Court directly on point, namely a judgement of Her Honour Justice Sarah Derrington in BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 301.
The decision in BMH20 was directly on point as regards the applicant’s claim as set out in Ground 1 of the Application for Review, and it was accepted by Ms Zhou that the effect of Her Honour’s judgement was adverse to the claims of the applicant, as set out in such Ground. The inescapable inference to be drawn from the fact of the making of the present application for transfer was that the applicant sought to have the issue raised in Ground 1 not agitated in this Court, but rather before a different Judge of the Federal Court, namely a judge who might very well make findings contrary to those of Her Honour in BMH20.
This Court will not endorse, or enable, any such attempt at “Judge-shopping” or “Forum-shopping”. It was an abuse of this Court’s process for the application to be brought in the light of the matters referred to above. In Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [15], the majority (Gleeson CJ, Gummow, Hayne and Crennan JJ) approved of the judgement of McHugh J in Rogers v R (1994) 181 CLR 251 at 286, where His Honour said:
“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.”
His Honour added:
“Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.”
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.”
(underlining inserted)At the least, the Court finds that the making of the subject application for transfer fell into the first and third categories referred to by McHugh J.
The Court also finds that the applicant has not demonstrated that any of the other factors referred to in r. 8.02(4) of the Rules have been satisfied.
The application for transfer is without merit and is dismissed.
The applicant shall pay the respondent’s costs of and incidental to the application for transfer in such amount as is agreed to between the parties, or failing agreement, to be assessed.
Notation
1.At the conclusion of argument during the course of the hearing, when it had been indicated to Counsel for the applicant that the application for transfer would be dismissed, Counsel was asked if they required written reasons for that decision. Counsel replied that written reasons were required. These written reasons were delivered accordingly.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 17 May 2024
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