Griffiths v Minister for Immigration

[2017] FCCA 171

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIFFITHS v MINISTER FOR IMMIGRATION [2017] FCCA 171

Catchwords:
MIGRATION – Application for a transfer of proceedings to the Federal Court of Australia – consideration of factors under r.8.02 – consideration of factors under s.39 – resources are sufficient for an expeditious hearing of a person in detention in this Court – proceeding does not warrant a transfer to the Federal Court of Australia – application dismissed.

Legislation:

Constitution, s.75(v).

Federal Circuit Court of Australia Act 1999 (Cth), s.39.
Federal Circuit Court Rules 2001, r.8.02.

Migration Act 1958 (Cth), ss. 476A, 501CA.

Cases cited:

Okeke v Minister for Immigration [2016] FCCA 1467

Applicant: GARY AUSTIN GRIFFITHS

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 138 of 2017

Judgment of: Judge Street

Hearing date: 2 February 2017

Date of Last Submission: 2 February 2017

Delivered at: Sydney

Delivered on: 2 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Ms M Wells

Sparke Helmore

ORDERS

1. The application for transfer in the Federal Circuit Court of Australia is refused.

2. The matter is listed for hearing at 9:30am on 9 March 2017.

3. The Applicant file and serve any further affidavit evidence or amended application on or before 15 February 2017.

4. The Respondent file and serve any affidavit evidence or Court Book on or before 22 February 2017.

5. The Applicant file and serve any submissions on or before 28 February 2017.

6. The Respondent file and serve any submissions on or before 7 March 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 138 of 2017

GARY AUSTIN GRIFFITHS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application for transfer of proceedings to the Federal Court of Australia made pursuant to r.8.02 of the Federal Circuit Court Rules 2001. The proceedings involve a personal decision made by the Minister under s.501CA of the Migration Act 1958 (Cth). This Court has jurisdiction in respect of that decision. This Court has a duty to exercise its jurisdiction in respect of matters properly commenced before the Court. The Federal Court of Australia has no jurisdiction in respect of that decision.

2. Ms Wells on behalf of the respondent submitted that jurisdiction was conferred on this Court by error. No such proposition is established before this Court. This Court regularly exercises powers under s.75(v) of the Constitution in respect of decisions of the Minister.

3. The various factors the Court must take into account are identified in s.39 of the Federal Circuit Court of Australia Act 1999 (Cth). The first consideration is whether or not there are rules of Court to which the Court must have regard. In that regard, r.8.02 of the Federal Circuit Court Rules2001, made under s.60 of the Act, identifies a number of factors that should be considered.

Consideration of r.8.02 factors

Whether the proceeding is likely to involve questions of general importance

1. The first is whether the questions in the proceedings involve questions of general importance such that it would be desirable for the matter to be heard before the Federal Court. There is no greater importance in these proceedings than the other proceedings before this Court under the Act, and no question of general importance has been identified in the submissions of the Minister warranting a transfer of the matter to the Federal Court of Australia.

Whether the proceedings are likely to be heard and determined at less cost and more convenience

1. In relation to the issue of whether the proceedings are likely to be heard and determined at less cost or less inconvenience to the parties if the proceedings are not transferred, this Court can hear the matter in early March 2017 and in those circumstances, it would clearly involve less cost and more convenience for this Court to deal with the matter currently before the Court.

Whether the proceeding will be heard earlier in this Court

1. In relation to the consideration of whether the proceedings will be heard in this Court, this Court has significant resources and notwithstanding the burden on this Court and the burden on the Federal Court of Australia, at this stage the Court is of the view that the proceedings will be heard earlier in this Court than they would be in the Federal Court of Australia.

Consideration of the availability of particular procedures

1. In relation to the question of particular procedures appropriate for the class of proceedings, this is not a case where any procedure has been identified that warrants a transfer of the matter to the Federal Court of Australia.

Consideration of the wishes of the parties

1. In relation to the wishes of the parties, it is the case that the applicant consents to the transfer that the respondent seeks. It is not however, for the parties to determine the considerations that arise in relation to a transfer of proceedings. Where proceedings are properly brought before this Court, this Court has a duty to exercise its jurisdiction to hear the matter. 

2. Reliance was placed by the Minister on a number of decisions of this Court that took a different view to the position taken in Okeke v Minister of Immigration [2016] FCCA 1467. I do not accept that jurisdiction was conferred on this Court by error. That proposition lacks substance. The reasoning advanced in the other cases turned on their own facts and weighing of findings and do not identify any principle of law.

Consideration of s.39 of the Federal Circuit Court of Australia Act 1999 (Cth)

1. The Court is also required to take into account under s.39(3)(b) of the Federal Circuit Court of Australia Act 1999 (Cth), whether proceedings in respect of an associated matter are pending in the Federal Court of Australia. There are no such proceedings. The Court has also to take into account under s.39(3)(c) of the Federal Circuit Court of Australia Act 1999 (Cth) whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceedings. For the reasons already given, this matter can be heard properly before this Court in March and the resources are sufficient for an expeditious hearing in respect of a person who is in detention. A further consideration under s.39(3)(d) of the Federal Circuit Court of Australia Act 1999 (Cth) is the interests of the administration of justice. No jurisdiction is conferred on the Federal Court of Australia under s.501CA of the Migration Act 1958 (Cth). It does not advance the interests of the administration of justice for proceedings to be brought formally in one Court and then transferred to another Court so as to confer jurisdiction on that Court when the proceedings have been properly brought before a Court seized of jurisdiction.

2. Whilst I accept that there is power to transfer the proceedings where the considerations under s.39 Federal Circuit Court of Australia Act 1999 (Cth) weigh in favour of transfer, taking into account the Rules and that this would then confer jurisdiction on the Federal Court of Australia under s.476A(1)(a) of the Migration Act 1958 (Cth), this Court should not lightly transfer proceedings to another busy Court in respect of a matter within this Court’s jurisdiction.

3. The Minister submits that the proceedings raised issues of complexity. No basis for that argument was developed. The proceedings involve ordinary considerations in respect of s.75(v) of the Constitution that this Court considers every day. The Court does not accept that the proceedings involve any issue of complexity warranting a transfer to the Federal Court of Australia. I am not satisfied that the interests of the administration of justice warrant a transfer of the proceedings.

Conclusion

1. The application for transfer to the Federal Court of Australia is refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 February 2017