NAHS of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 829

FEDERAL COURT OF AUSTRALIA

NAHS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 829

NAHS OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N400 of 2002

ALLSOP J
25 JUNE 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N400 of 2002

BETWEEN:	NAHS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	25 JUNE 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the matter be transferred to the Federal Magistrates Court;

2.costs of today and costs hitherto be costs in the cause;

3.all directions hitherto made be directions in the matter;

4.there be liberty to apply with two days’ notice before the Federal Magistrates Court or to a Registrar of that Court;

5.the respondent notify the applicant by letter of these orders, that letter to include a reference to the fact that the applicant did not appear and of the existence of O 35 r 7 subr (2) para (a) of the Federal Court Rules and its terms; and

6.pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), publishing of the name of the applicant discussed in this matter today be prohibited.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N400 of 2002

BETWEEN:	NAHS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	25 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant has filed an application seeking orders under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal. The matter came before a Registrar of this Court on a prior occasion and the Registrar stood the matter over until today, before me, indicating to the parties that they should be prepared to express a view today about whether or not the matter was a suitable one for transfer to the Federal Magistrates Court (the Magistrates Court).

2. The matter was called on today. Ms Campos of Clayton Utz appears for the respondent Minister, and no appearance was made by the applicant. By reason of the terms of s 91X of the Migration Act 1958 (Cth), the terms of which I must assume for present purposes to be Constitutionally valid, I am not able to publish the name of the applicant and thus I am not able to have his name called outside Court. Thus he was called outside Court under the acronym given to him by the Court in order to ensure compliance with the terms of s 91X, that is, ‘Applicant NAHS of 2002’. No appearance was made by the applicant.

3. Ms Campos for the respondent Minister has indicated the Minister's view that the matter is an appropriate one to be dealt with by the Magistrates Court.  Looking at the application and the papers, holding the views that I have expressed in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, given the body of authority now developing in the Court, although subject to a pending Full Court decision, taking into account the wishes of the parties to the extent they have been expressed before me, questions of costs and questions of a likely hearing date in my docket compared to the Magistrates Court, I think it is an appropriate matter to be transferred to the Magistrates Court.

4. Thus the orders I make are that:

   (1)the matter be transferred to the Magistrates Court;

   (2)costs of today and costs hitherto be costs in the cause;

   (3)all directions hitherto made be directions in the matter;

   (3)there be liberty to apply with two days’ notice before the Magistrates Court or to a Registrar of that Court;

   (4)the respondent notify the applicant by letter of these orders, that letter to include a reference to the fact that he did not appear and of the existence of O 35 r 7 subr (2) para (a) of the Federal Court Rules and its terms; and

   (5)pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), the publishing of the name of the applicant discussed in this matter today be prohibited.

5. Those are the orders I make for those reasons.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             28 June 2002

No appearance by the Applicant.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	25 June 2002
Date of Judgment:	25 June 2002