Efx17 v Minister for Immigration
[2018] FCCA 2957
•15 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EFX17 v MINISTER FOR IMMIGRATION | [2018] FCCA 2957 |
| Catchwords: MIGRATION – Application for matter to be transferred to Federal Court of Australia pursuant to s 39 of Federal Circuit Court of Australia Act 1999 (Cth) where Federal Circuit Court of Australia was found to have original jurisdiction to review decisions made pursuant to section 501CA of the Migration Act1958 (Cth) – where it was appropriate for matter to be expeditiously determined in Federal Circuit Court – application for transfer dismissed. |
| Legislation: Federal Circuit Court of Australia Act1999 (Cth) s.39. Federal Circuit Court Rules2001 (Cth), r.8.02 Migration Act1958 (Cth), s.501CA |
| Cases cited: Minister for Home Affairs v Aciek [2018] FCAFC 120 |
| Applicant: | EFX17 |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | BRG 942 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 15 October 2018 |
| Date of Last Submission: | 15 October 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 15 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Fuller |
| Solicitors for the Applicant: | Prisoners Legal Service |
| Counsel for the Respondents: | Ms A. L. Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The Application in a Case filed on behalf of the Respondent on 25 September 2018 be dismissed.
The Applicant file and serve any further written submissions on or before 4:00pm on 19 October 2018.
The costs of and incidental to this Application in a Case be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT AUSTRALIA |
BRG 942 of 2017
| EFX17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
On 27 September 2018, the Respondent filed an Application in a Case seeking an order that the hearing of the Amended Application for Review of the Applicant filed on 4 December 2017 be transferred to the Federal Court of Australia pursuant to the provisions of section 39 of the Federal Circuit Court of Australia Act. Section 39 of the Federal Circuit Court of Australia Act1999 (Cth) provides as follows:
Discretionary transfer of proceedings to the Federal Court or the Family Court
39. (1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.
(2) The Federal Circuit Court of Australia may transfer a proceeding under this section:
(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 under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(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 Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(5) If an order is made under subsection (1), the Federal Circuit Court of Australia may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.
(6) An appeal does not lie from a decision of the Federal Circuit Court of Australia in relation to the transfer of a proceeding under subsection (1).
(7) A reference in subsection (1) to a proceeding pending in the Federal Circuit Court of Australia includes a reference to a proceeding that was instituted in contravention of subsection 19(1).
(8) This section does not apply to proceedings of a kind specified in the regulations.
Section 39 appears under the heading “Discretionary Transfer of Proceedings to the Federal Court or the Family Court”. Subparagraph (4) of that section sets out a number of criteria to be considered on the hearing of any application for transfer, and, in respect thereof, it is noted as follows:
a)Rule 8.02 of the Federal Circuit Court Rules2001 (Cth) is a rule of Court made for the purposes of setting out the factors which are to be taken into account by the Federal Circuit Court of Australia in deciding whether to transfer a proceeding to the Federal Court under section 39(1).
b)In the current case, there is no proceeding in respect of an associated matter which is pending in the Federal Court.
c)It is not in dispute that the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the subject proceeding; and
d)The interests of the administration of justice ought to be determined by reference to a number of factors, some of which are referred to in rule 8.02 of the Federal Circuit Court Rules2001 (Cth). That rule provides as follows:
Transfer to Federal Court or Family Court
8.02 (1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family 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 required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(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 or the Family 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 is 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.
Note: See subsections 39(3) and (4) of the Act for matters the Court must have regard to in deciding whether to transfer a proceeding to the Federal Court or the Family Court.
In Rule 8.02(4) of the Federal Circuit Court Rules2001 (Cth), there are a number of factors which are relevant for consideration as to whether proceedings ought to be transferred to the Federal Court or not. Dealing with those factors:
a)The Respondent, by Ms Wheatley of Counsel, submitted that there arose in this case a question of general importance, namely whether the mode of the giving of notice to the Applicant in circumstances such as those in the current case was effective or not pursuant to the provisions of section 501CA(3) of the Migration Act1958 (Cth) (“the Act”).
b)The amended application filed on behalf of the Applicant sought the following relief:
i)A declaration that the delivery of material and information to the Applicant on 4 January 2017 (purported section 501CA(3) notice) did not comply with section 501CA(3) of the Act.
ii)A writ of mandamus requiring the Minister or his delegate to take the actions required by section 501CA(3) of the Act in accordance with law.
The submission made on behalf the Applicant was that the purported giving of notice in this case was unlawful, because:
a)the notice was sent by a delegate of the Minister via email to the relevant Corrective Services institution, for passing onto the Applicant, in circumstances where the person who actually handed the notice to the applicant was not a duly appointed delegate of the Minister; and
b)the notice was written in English (that being a language which the applicant could not read or understand) in circumstances where no arrangements had been made for an interpreter to be present to advise the applicant of its contents.
In relation to applications for the review of decisions made by a delegate to the Minister pursuant to section 501CA of the Act, the legislature has specifically provided that the Federal Court of Australia does not have sole original jurisdiction in respect of any such applications. The Federal Circuit Court of Australia also has such jurisdiction. That is a factor which supports the case proceeding in the Federal Circuit Court of Australia, particularly in circumstances where the Applicant wishes for the matter to proceed in this Court, and further in circumstances where the application for review is listed for hearing and determination on 24 October 2018, some nine days hence.
This Court is well able to arrive at a determination as to the proper construction of section 501CA(3) of the Act. This Court is also not bound by any earlier decision of this Court on point. Counsel for the Respondent referred to the decision of Judge Manousaridis in Aciek v Minister for Immigration and Border Protection [2017] FCCA 3237 in support of the proposition that if this Court was to decide the question in favour of the Respondent on point, then there would be two conflicting decisions of the Federal Circuit Court relating to the construction of the same section. If that was to transpire, then the Applicant would have a right of appeal which might or might not be exercised.
In the event that the applicant did exercise his right to appeal any such decision, then the matter would proceed to a hearing before the Federal Court. In those circumstances, there would likely be no refusal by the Full Court of the Federal Court to deal with the issue on appeal, as was the case in Minister for Home Affairs v Aciek [2018] FCAFC 120. In that case, the Full Court of the Federal Court declined to proceed with the appeal on the ground that the issues raised in that appeal were moot. That would not be the case in the event that either party in this case elected to appeal the decision of this court.
The matter can be dealt with expeditiously in this court. In all of the circumstances, therefore, the application for transfer is dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 22 October 2018
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