MZXJR v Minister for Immigration
[2006] FMCA 652
•4 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXJR v MINISTER FOR IMMIGRATION | [2006] FMCA 652 |
| PRACTICE AND PROCEDURE – Migration – Application for transfer to Federal Court – whether proceedings of ‘general importance’ – whether appropriate to transfer application for writ of mandamus – application refused. |
| Federal Magistrates Court Rules 2001, rr.8.02, 44.05 Migration Act 1958, ss.476A Federal Magistrates Act 1999, ss.39 Migration Litigation Reform Act 2005 |
| VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 |
| Applicant: | MZXJR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | MLG 560 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 1 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.M. Niall |
| Solicitors for the Applicant: | Mallesons Stephen Jacques |
| Counsel for the Respondent: | Mr C. Gunst Q.C. |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application to transfer the proceedings to the Federal Court of Australia is refused.
The costs of and incidental to the application to transfer the proceedings be reserved.
Pursuant to Rule 44.11(c) of the Federal Magistrates Court Rules 2001 (the Rules) a hearing under Rule 44.2 of the Rules be dispensed with and the application be listed for final hearing on the grounds set out in the application.
The application is fixed for final hearing on 7 June 2006 at 10.15 am.
All times be abridged and so much of the Rules be dispensed with to enable the application to be heard on the date fixed pursuant to Order 4 hereof.
The Respondent shall file and serve a Response and any further affidavits, if any, to be relied upon on or before 26 May 2006.
The Applicant shall file and serve any further affidavits and an outline of submissions on or before 1 June 2006.
The Respondent shall file and serve an outline of submissions by
10 am on 5 June 2006.
Liberty to apply is granted to the parties generally.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 560 of 2006
| MZXJR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant filed an application on 27 April 2005 in the form prescribed by Rule 44.05 of the Federal Magistrates Court Rules 2001 (the Rules). The application is an application under the Migration Act 1958.
The application was issued as an urgent application and includes in it an order pursuant to s.39 of the Federal Magistrates Act 1999 (the FM Act) that the proceeding be transferred to the Federal Court of Australia.
The substantive application seeks an order in the nature of a constitutional writ of mandamus compelling the Respondent to determine the Applicant's application for a protection visa (class XA) subclass 785 on an application for a visa dated 31 January 2006.
The application for transfer relies upon both s.39 of the FM Act and Rule 8.02 of the Rules. Section 39 of the FM Act relevantly provides:-
“39 Discretionary transfer of proceedings to the Federal Court or the Family Court
(1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.
(2) The Federal Magistrates Court 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 Magistrates Court 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 Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.”
Sub-rule 8.02(4) of the Rules relevantly provides:-
“8.02 Transfer to Federal Court or Family Court
…
(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 Federal Magistrates Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties;
…”
(Emphasis added)
It should be noted in the present application that since the introduction of s.476A of the Migration Act 1958 (the Migration Act) the Federal Court has limited jurisdiction in relation to a migration decision. That section was introduced into the Migration Act by Schedule 1 of the Migration Litigation Reform Act 2005 which provided that the Federal Magistrates Court has the same jurisdiction under the Migration Act as the High Court under paragraph 75(b) of the Constitution. Section 476A of the Migration Act became operational on 1 December 2005 and now provides limited jurisdiction of the Federal Court as follows:-
“(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977 , the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a) the Federal Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Magistrates Act 1999 ; or
(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or
(d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 .
(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.”
It will be noted from that section that the Federal Court will have original jurisdiction in relation to a migration decision if, and only if, the Federal Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under s.39 of the FM Act.
It is assumed for present purposes, and not in dispute between the parties, that s.476A of the Migration Act applies and that the Applicant, in order to continue with the proceeding in the Federal Court of Australia would need an order from the Federal Magistrates Court pursuant to s.39 of the FM Act transferring the proceedings to the Federal Court.
Whilst I have some reservations concerning whether a decision has actually been made in the present case, I am prepared to consider in any event the application for transfer having regard to s.39 of the FM Act and Rule 8.02 of the Rules. The reservation I have is that in this case a decision has not yet been made in relation to the application for a protection visa which was made on 31 January 2006.
Background
The Applicant is a 29‑year‑old man born in the Indonesian province of Papua. He is claimed to be the son of a prominent leader of a pro‑independence movement in Papua. His mother is a Japanese citizen living in Jakarta, Indonesia.
After filing the application for a protection visa, it is claimed that the Applicant was interviewed by a delegate of the Respondent on 5 February 2006. The Applicant arrived in Australia on 18 January 2006, along with 42 other asylum seekers who likewise made application for protection visas. It is not in dispute that temporary protection visas were granted to the other 42 asylum seekers on 23 March 2006. The Applicant has been in detention on Christmas Island since 19 January 2006 and a decision has not yet been made in relation to his application for a protection visa.
It is not necessary when referring to the background in relation to this application for transfer to make further detailed reference to the material relied upon by the Applicant in support of a substantive application set out in affidavits filed and served with the court, save to note that at the time of filing the application a period of almost 90 days had elapsed since the date the application was made and the Applicant has been in detention since 19 January 2006.
Applicant's Submissions
The Applicant submitted in support of the application to transfer that the substantive application raises a number of questions of general importance. It is noted that Rule 8.02 refers to the concept of whether a 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."
It is submitted by the Applicant that in this case there are a number of questions of general public importance, including the following:
·Whether the Respondent is obliged to exercise a duty under s.65 of the Migration Act to make a decision in relation to the Applicant's application for a protection visa.
·Whether the refusal or failure by the Respondent to exercise a duty under s.65 of the Migration Act to make a decision in relation to the Applicant's application for a protection visa involved a direction to the delegate charged with making a decision on the Applicant's protection visa application to cease processing and/or to refrain from making a decision.
·Whether such a direction was unlawful such that the refusal is infected with jurisdictional error.
·Whether the refusal has been for the purpose of:
· allowing the Respondent time to create the circumstances by which she could seek to make a decision based on s.36(3) of the Migration Act,
· Advancing the diplomatic relations between Australia and the Republic of Indonesia.
· Preventing a deterioration in the diplomatic relations between Australia and the Republic of Indonesia or
· Deterring persons coming from West Papua into the Migration Zone for the purpose of seeking protection under the Refugees Convention.
It is further submitted that the question to be considered by the court is whether any of the purposes referred to above constitute jurisdictional error and/or whether it appears that the Respondent has taken into account irrelevant considerations sufficient to constitute jurisdictional error.
Section 36 of the Migration Act provides:
“Protection visas
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
Protection obligations
(3) Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non‑citizen has a well‑founded fear that:
(a) a country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.”
Section 65 of the Migration Act provides in relation to the decision to grant or refuse to grant visa:
“(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”
Section 65A of the Migration Act which became operational on
1 December 2005 provides for the period within which Minister must make decision on protection visas:
“(1) If an application for a protection visa:
(a) was validly made under section 46; or
(b) was remitted by any court or tribunal to the Minister for reconsideration;
then the Minister must make a decision under section 65 within 90 days starting on:
(c) the day on which the application for the protection visa was made or remitted; or
(d) in the circumstances prescribed by the regulations—the day prescribed by the regulations.
(2) Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa.”
It is submitted that in this instance although the 90-day time period referred to in s.65A of the Migration Act had not expired at the time of filing the application in this court, it would expire on the day of the hearing and, in any event, the matters of general public importance combined with the fact that the Applicant is currently in detention and that significant issues are raised concerning the delivery of a decision, then those factors combined are sufficient to justify and/or establish urgency and/or support the application for an order for transfer to the Federal Court.
It is necessary to briefly refer to the affidavit material which addresses substantive issues in order to understand the claims made in relation to what have been described as questions of general public importance. In an affidavit filed on behalf of the Applicant and affirmed by Charles Guy Robert Powells on 21 April 2006 the deponent relevantly states at paragraph 18 the following:-
“18. On 31 March 2006, Ms Sullivan telephoned me at about 10.20 am. She stated that she had already seen the articles attached to my letter of the same date. She said that she had been ready to finalise the application on Monday but had been told by "higher up" to wait.”
In another affidavit filed on behalf of the Applicant and sworn by David Thomas Manne on 26 April 2006 the deponent relevantly states at paragraphs 5 and 6:-
“5. On 4 April 2005 I received a telephone call on my mobile phone from Gillian Sullivan, the delegate who had been assigned to process the Applicant’s application for a protection visa. Ms Sullivan said words to the effect that she was calling to ‘apologise for the delay in making a decision in relation to …… case’. She told me that once there was a decision ‘we would be the first to know’.”
6. I said words to the effect that we were very concerned that the delay was not at her end but was rather caused by people higher up. I referred to the discussion she had had with Charlie Powles on 31 March 2006 and said words to the effect that ‘our concern is that you were ready to make a decision but had been told to wait.’ Ms Sullivan confirmed that that was the case. I also said words to the effect that we were very concerned that the delay in making a decision on David’s application was being dictated by some people ‘higher up’. Ms Sullivan confirmed that that appeared to be the case.”
It is submitted for and on behalf of the Applicant in support of the application to transfer the proceedings that those allegations raised issues of general public importance which should properly be considered by the Federal Court. It will be noted that the Applicant has imported into the relevant phrase the concept of ‘public’ importance when the relevant provision only refers to ‘general importance’.
It is further submitted that in this case the Federal Court procedures, including the system and procedures when dealing with discovery would be more convenient and appropriate to this application anticipating, as the Applicant has, that a serious issue may arise in relation to discovery matters which may require close case management.
It should also be noted that during the course of submissions reference was made to s.65A of the Migration Act and whether that imposes an enforceable duty on a delegate of the Minister. It was noted that there do not appear to be any cases dealing with the new s.65A of the Migration Act. Further, emphasis was placed upon the issues arising from s.36(3) of the Migration Act.
Counsel for the Applicant referred the court to a decision of Gray J in a matter of VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 (VHAF). That decision concerned, amongst other issues, the power of the court to order release pending hearing and determination of an application and whether the balance of convenience favoured release. It is noted that the decision was an interlocutory decision and counsel submitted in the present case this court, when confronted with an interlocutory decision of a Federal Court Justice and there being no other contrary decisions in the Federal Court that it would be more appropriate for this court to transfer the application to the Federal Court in order to obtain a final rather than an interlocutory decision concerning the issues raised in this application. Specific reference was made to a number of passages from the decision of Gray J in VHAF and for present purposes and it is sufficient to refer to the following extract which appears in paragraph 69 where His Honour states:
“69. … There is, however, a powerful argument for the proposition that the Minister cannot direct a delegate to do something that the Minister could not do. Again, given the nature of the statutory duties imposed by ss 47(1) and 65, there must be serious doubt as to whether those duties can be put aside, even on a direction from the Minister to do so. There is, of course, no evidence of the Minister as being the origin of any direction given in the emails of 16 to 26 November 2001, nor as to any delegated authority that the senders of those emails may have had pursuant to s 496 of the Migration Act. In the circumstances, it is difficult to see that Mr Thompson had lawful authority to refrain from performing his statutory duties to consider the Applicant's application and, if satisfied that the Applicant met the criteria, to grant the visa sought.”
In support of the submission that the application should be regarded as an urgent matter, reliance was also placed upon the fact that the Applicant is currently in detention and, having regard to the balance of convenience, this application should be heard as a matter of urgency and if transferred, transferred with a request that it be dealt with expeditiously by the Federal Court. Reference was made to paragraph 95 of the decision of the Federal Court in VHAF where Gray J stated the following:-
“95. In my view, the protection of individual liberty is of such fundamental importance to the Australian legal system that the mere fact that the applicant is in detention must be given considerable weight in assessing the balance of convenience. It is not necessary for the applicant to show that he is suffering the effects of detention to a greater extent than other detainees, or even that he is suffering physically or mentally. Deprivation of liberty is never to be regarded lightly.”
I should note in passing that the Respondent did not suggest that in this case the matter should not be expeditiously and nor was it sought to be argued by the Respondent that the fact of detention does not justify a degree of urgency and priority. Both parties conceded that the deprivation of liberty was a significant factor to be taken into account by the court in determining both urgency and the priority to be given to this application.
Respondent's Submissions
The Respondent submitted that the Federal Magistrates Court is now the court which parliament has intended should be the court which deals with migration applications, save that it has power to transfer applications to the Federal Court pursuant to s.476A of the Migration Act referred to earlier in this judgment. It is noted that that section specifically provides the Federal Court does not have jurisdiction to hear applications relating to decisions in migration matters, other than those cases transferred by the Federal Magistrates Court.
Counsel submitted that the affidavit material relied upon by the Applicant does no more than advance a suggestion that the delegate of the Respondent had been given a direction to "wait".
It was submitted that this court has the capacity and resources to hear and determine the matter and in particular has a docket system and the capacity to deal with disputes concerning discovery.
It was further submitted that the Federal Magistrates Court could hear and determine the matter at less cost and more convenience to the parties than the Federal Court and that it may be heard earlier in this court than in the Federal Court.
The Respondent sought to rely upon an affidavit sworn by Maria Ngo on 1 May 2006 which refers to these proceedings commencing without notice to the Respondent, despite correspondence being forwarded to the Applicant's solicitors on the day the proceedings were filed, that is, 27 April 2006.
The correspondence of that date from the Respondent's solicitors to the Applicant's solicitors in part states as follows:-
“2 The Department notes the concern raised in your letter regarding the perceived delay in the processing of your client's application for a Protection (Class XA) visa. As was conveyed by Mr Illingworth to your client's migration agent David Mann of Refugee and Immigration Legal Centre Inc during a telephone conversation on 12 April 2006, a decision in respect of your client's application has not been made because the Department was seeking information from the Government of Japan for the purpose of determining whether s.36(3) of the Migration Act 1958 is applicable in your client's case.
3 The Department has now received advice that the Government of Japan will provide a response to our inquiry by way of a Third Party Note. This diplomatic note is expected within a matter of days. As soon as the Note has been received, we will consider its implications and forward any adverse information to your client for consideration and response.”
Counsel for the Respondent submitted that the correspondence indicated that progress was being made in relation to a matter properly to be pursued by the Respondent's delegate, mainly whether s.36(3) of the Migration Act applied, given that the Applicant's mother was a Japanese citizen.
It was submitted that there is no basis upon which the court should conclude there is urgency over and above the fact that the Applicant is currently in detention. As I understood the Respondent's submissions, that matter can be dealt with by a truncated timetable permitting the final hearing of the matter to be heard on the earliest possible date.
It was further submitted that in any event the issues raised in support of the application for a constitutional writ of mandamus, whilst raising questions of law which need to be addressed by the court, did not otherwise raise issues of general importance of a kind that would make it desirable for a decision to be made by the Federal Court.
The Respondent submitted that having regard to the factors to be taken into account in the exercise of the court's discretion pursuant to s.39 of the FM Act and Rule 8.02 of the Rules, the application for transfer should be refused. It was clear that it was not the wish of both parties to transfer the matter to the Federal Court and the Respondent submitted the appropriate court to hear and determine the application is the Federal Magistrates Court, particularly having regard to the introduction of s.476A of the Migration Act.
Reasoning
In my view the submissions on behalf of the Respondent in relation to the transfer application are correct. In this instance I am not satisfied that the issues sought to be agitated in the substantive application to which I have made reference briefly in this judgment are issues which relate to any other Applicant currently in detention or that the issues are of sufficient general importance to justify transfer to the Federal Court. The Rules do not import the term ‘public general importance’ but rather simply refer to the concept of ‘general importance’. In this instance the application and the circumstances relate to a particular Applicant and I am not satisfied there is sufficient material before the Court to justify a conclusion that the application could properly be described as one of ‘general’ importance having regard to the dictionary definition of ‘general’ which is defined relevantly to mean -
‘Pertaining to or current among the majority, prevalent, widespread, usual, common. Not specifically limited in application, relating to a whole class of objects, cases, occasions etc; true for all or nearly all cases coming under its terms”
(The New Shorter Oxford English Dictionary)
I am otherwise satisfied that after having made due inquiries of the Federal Court Registrar that in this instance the Federal Magistrates Court is able to accommodate the hearing within a reasonable time and it would appear at least as early as the application may be accommodated if the application was transferred to the Federal Court and docketed to a Federal Court Justice. Due allowance must be given of course to a timetable permitting the parties to file and serve other material. That allowance would be made whether the matter is heard in the Federal Magistrates Court or the Federal Court.
In this court the hearing date can be fixed within five weeks with appropriate directions being made to ensure that the matter proceeds on the scheduled date.
When considering the power to transfer pursuant to s.39 of the FM Act and Rule 8.02 of the Rules, it is important to bear in mind that since the introduction of s.476A this court has a significant responsibility to deal with decisions arising under the Migration Act.
I accept the submissions made on behalf of the Respondent that this court has appropriate rules to deal with any discovery issue which may arise prior to the final hearing of the substantive application and, I also note in passing, that this court, like the Federal Court, operates a "docket" system which has the advantage of ensuring close case management.
Whilst I accept that there may be some issues in relation to the law applicable and whether or not the interlocutory decision of Gray J in VHAF has relevance, those issues, along with other issues of law, are not sufficient to justify in my view a transfer to the Federal Court.
As a Chapter III Court the Federal Magistrates Court, dealing now as it does with the majority of migration decisions, should be ready, willing and able to deal with applications of this type. This is consistent with the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 which provides in paragraph 14 the following:-
“It is expected that the FMC will only transfer matters to the Federal Court under s.39 of the Federal Magistrates Act where those matters require the attention of a superior court by virtue of their complexity.”
In the present case I am not satisfied that the application is of such complexity that it requires the attention of the Federal Court. That is not to say there may not be other cases where general importance issues arise which may, for example affect a significant number of litigants or seek to determine the relevant law where there may be conflicting final decisions of Justices of the Federal Court. However, even in those instances it may well be the case that it would be preferable for a decision to be made by this court so the application then occupies the time of one or three Federal Court Justices, depending on the number of Justices constituting a Full Court hearing an appeal from this court which, despite recent amendments, still remains a matter for the Chief Justice of the Federal Court to determine.
I am further satisfied in the present case that the resources of the Federal Magistrates Court are sufficient to hear and determine the proceedings and moreover that it is in the interests of the administration of justice for the application to be determined in this court. In my view where the court has the resources and where, as in this case, the matter is likely to be heard and determined at less cost and more convenience to the parties, then it is in the interests of the administration of justice to refuse the application to transfer the proceedings to the Federal Court.
It was not my understanding of the submissions made for and on behalf of the Applicant that an application for a constitutional writ of mandamus would of itself provide a basis upon which the court should exercise its discretion to transfer the proceedings to the Federal Court. Any suggestion of that kind would, of course, be unwarranted given the court's powers to now deal with migration matters which often include consideration of the law in relation to constitutional writs.
Conclusion
It follows that the application for transfer should be refused, though I am prepared to regard the application as one requiring a degree of urgency given that the Applicant remains in detention without the benefit of a decision. It is not appropriate to otherwise canvass in detail the issues raised in the material before the court as no doubt those issues will be properly and fully canvassed by the parties at the substantive hearing. In my view it is the duty of the Federal Magistrates Court to deal with this application and to do so expeditiously. I propose making orders to ensure a speedy trial subject to hearing further submissions from the parties.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 4 May 2006
6
1
4