Lo v Minister for Immigration & Anor

[2006] FMCA 1503

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1503

MIGRATION – Visa – business skills visa – cancellation of business skills visa – Administrative Appeals Tribunal – AAT presidential member found notice of intention to cancel business skills visa valid.

PRACTICE & PROCEDURE – Jurisdiction of Federal Magistrates Court – transferred to Federal Court.

Administrative Appeals Tribunal Act 1975 (Cth), s.44AA
Federal Magistrates Act 1999 (Cth), s.39(2)

Blanco v Minister for Immigration [2005] FMCA 136 followed
Lee v Minister for Immigration [2006] FMCA 286 not followed

Applicant: MEI HUI LO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 837 of 2006

Judgment of: Scarlett FM

Hearing date: 27 September 2006

Date of Last Submission: 27 September 2006

Delivered at: Sydney

Delivered on: 27 September 2006

REPRESENTATION

Counsel for the Applicant: Mr Godwin

Solicitors for the Applicant: Brett Slater Solicitors

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Pursuant to s.39(b)(2) of the Federal Magistrates Act the application is transferred to the Federal Court of Australia.

2. I direct under Federal Court Rules O.82 r.1 that the Respondent file this Order in the NSW Registry of the Federal Court.

3. Order that the costs of today’s hearing be costs in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 837 of 2006

MEI HUI LO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The Tribunal was constituted by a Deputy President of the Tribunal, Professor Walker.  The question that I have raised with the parties is whether it is appropriate for this Court to deal with a review of a decision of a presidential member of the AAT.  I am satisfied that the Federal Magistrates Court has the jurisdiction.

2. The situation as I understand it is somewhat more complicated in that since the amendments to the legislation in December last year the Court has, under s.476, jurisdiction to deal with the matter. There is, however, the fact that s.44AA of the Administrative Appeals Tribunal Act 1975 provides that:

   Whilst the Federal Court may transfer an appeal to this Court under sub-s. 2 the Federal Court of Australia must not transfer an appeal to the Federal Magistrates Court if the appeal:

   (a) relates to a decision given by the Tribunal constituted by a member who is, who was or members at least one of whom was a presidential member.

3. The applicant indicates a preference for the matter to be transferred to the Federal Court but does not oppose the matter being heard in this Court.  The respondent, whilst pointing out that the Court does have jurisdiction does not take a position either way.   I have had recourse to the decisions of my learned colleagues, Smith FM in the matter of Blanco v Minister for Immigration [2005] FMCA 136 and Lloyd-Jones FM in the matter of Lee v Minister for Immigration [2006] FMCA 286.

4. In each of those cases their Honours considered the matter and in fact in the matter of Lee, Lloyd-Jones FM referred to the decision in Blanco (supra) to the parties’ legal advisors.  In each case the Court took two different decisions.  In Blanco Smith FM took the view that in the interests of the administration of justice the application should be transferred to the Federal Court.

5. Lloyd-Jones FM considered the situation and referred the parties to the decision of Smith FM in Blanco and came to the conclusion that the matter should remain in the Federal Magistrates Court. His reasons for doing so are set out at [16] where his Honour said:

   The parties submitted that the Court has jurisdiction to determine the application and the issue arising as to whether in the circumstances the Court should exercise its discretion to transfer the matter to the Federal Court.  Both parties submitted that the Court has jurisdiction to determine the matter and the matter has been fully argued.  The preferable course in the interests of justice would be for this Court to determine the application.

6. I have actually raised this as a threshold issue before hearing argument on the substantive matters.  I have read the decision of Lloyd-Jones FM in Lee v Minister for Immigration and I have also read the decision of Smith FM in Blanco.  In Blanco Smith FM at [16] referred to the jurisdictional structure and took the view that it would be more in accord with the policy reflected in s.44AA(2) of the Administrative Appeals Act for him to transfer the matter to the Federal Court to allow it to be argued and decided in that Court.

7. His Honour referred at [18] to the Court's discretion to order a transfer under sub-s.39(2) of the Federal Magistrates Act on the Court's own initiative. His Honour also looked at the matters to be considered in sub-s.3 and in r. 8.02 of this Court. Like his Honour I have considered all the matters. I am not of the view that issues for costs, convenience and speed are impediments to the transfer, although the balance of convenience may lie slightly in favour of the matter remaining in this Court. I note however that in Blanco at [20], Smith FM said this:

   I prefer to rest my reasons for the transfer on the consideration identified in sub s. 39(3)(b) "The interests of administration of justice." I consider that a transfer would clearly serve these interests by giving effect to the policy underlying sub s. 44AA(2) of the Administrative Appeals Tribunal Act.

   This provision suggests that it would be generally inappropriate in the hierarchy of appeal from the Tribunal for me to rule upon whether a decision of a Deputy President of the Tribunal is vitiated by jurisdictional error.

   In circumstances where I consider that the application may raise meritorious grounds, I consider that its consideration should take place in the Federal Court.

8. In my view his Honour's reasons in paragraph 20 are persuasive. 

   
   

   My reading of the submissions of the parties have led me to the consideration that the application may raise meritorious grounds,

   
   

   I would say no higher than that but it appears clear to me that the question of inappropriateness of this Court ruling upon a decision of a Deputy President of the Administrative Appeals Tribunal is a matter that I should take into account and I am of the view that under

   
   

   sub-s. 39(3)(b) the interests of the administration of justice that I too should follow the policy underlying s.44AA(2) of the Administrative Appeals Tribunal Act.

9. I propose to transfer the application to the Federal Court.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  6 October 2006