OKEKE v Minister for Immigration
[2016] FCCA 1467
•16 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OKEKE v MINISTER FOR IMMIGRATION | [2016] FCCA 1467 |
| Catchwords: MIGRATION – application for transfer of proceedings to the Federal Court – whether transfer would result in less costs for the parties – whether transfer would result in more convenience for the parties – whether transfer would result in an earlier hearing date – whether transfer would result in more appropriate procedures for the proceedings – application for transfer dismissed. |
| Legislation: Australian Constitution, s.75(v). Federal Circuit Court of Australia Act 1999 (Cth), s.39 Federal Circuit Court Rules 2001 r.8.02(4). Migration Act 1958 (Cth), ss.39, 476, 476A, 501, 501A, 501B, 501BA, 501C, 501CA. |
| Cases cited: Dietrich v The Queen (1992) 177 CLR 292. Shin Kobe Maru v Empire Shipping Company (1994) 181 CLR 404 AMK16 v Assistant Minister For Immigration [2015] FCCA 2328 |
| Applicant: | RONNY OKEKE |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1361 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 16 June 2016 |
| Date of Last Submission: | 16 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner Turner Coulson Immigration Lawyers |
| Solicitors for the Respondent: | Mr K Eskerie Sparke Helmore |
ORDERS
The application for transfer is dismissed.
The matter be fixed for hearing on 1 August 2016 at 10:15 am.
Leave to the parties to forward to the Court’s associate short minutes of order to be made by consent.
Costs are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1361 of 2016
| RONNY OKEKE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application for the transfer of the proceedings under s.39(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to the Federal Court of Australia.
The proceedings were commenced on 30 May 2016 and relate to a decision under s.501CA of the Migration Act 1958 (Cth).
The history of the matter involves circumstances where the very same applicant on 5 April 2016 made an application to the Federal Court of Australia seeking to agitate the same decision and as a result of consent orders on 11 May 2016, those proceedings were dismissed because the Federal Court of Australia has no jurisdiction in respect of the decision made by the Minister under s.501CA of the Migration Act 1958.
The applicant then brought the proceedings in this Court and it is the first respondent that has moved for a transfer to the Federal Court of Australia. It is common ground that this Court has jurisdiction in respect of the decision made by the Minister under s.501CA of the Migration Act 1958 pursuant to s.476 of the Migration Act 1958.
That jurisdiction is an extremely important jurisdiction reflecting a conferral on this Court of the same jurisdiction as is reposed under s.75(v) of the Constitution in the High Court of Australia.
The vesting of that jurisdiction under s.476(1) of the Migration Act 1958 should be approached on the basis that parliament said what it meant and meant what it said. The provision conferring jurisdiction should not be read as imposing limitations which are not found in the express words, see Shin Kobe Maru v Empire Shipping Company (1994) 181 CLR 404 at 420, 421.
The first respondent has pointed to the carve out in s.476(2) of decisions of the kind which involve character related decisions that have been made personally by the Minister. That carve out in s.476(2) does not include s.501CA. As a matter of construction, there is no implication or limitation on this Court’s jurisdiction which has been conferred upon it under s.501CA of the Migration Act 1958.
The first respondent relies upon AMK16 v Assistant Minister for Immigration [2015] FCCA 2328 and Tusitala v Assistant Minister for Immigration [2015] FCCA 3482. These were decisions of this Court, in substance following an approach that s.501CA of the Migration Act 1958 is similar to the other powers conferred from the Minister by ss.501, 501A, 501B and 501C of the Act. These powers are the subject of exclusion under s.476(2) of the Migration Act 1958 from the jurisdiction vested in the Federal Circuit Court of Australia. These powers are the subject of a conferral of jurisdiction on the Federal Court of Australia under s.476A of the Migration Act 1958.
That line of reasoning in this Court is based on the proposition that from the explanatory memorandum that introduced the amendments including s.501CA and the statutory scheme there can be gleaned an intention that it was appropriate for applications which involve character related decisions which are made personally by the Minister to be reviewed by the Federal Circuit Court of Australia.
The statutory scheme that permits refusal or cancellation of a visa under s.501 of the Migration Act 1958 includes a mandatory cancellation of a visa granted if the criteria under subsection 3A is met. Section 501CA applies if the Minister makes a decision under s.501(3A) of the Migration Act 1958. Section 501CA provides a discretionary power for the Minister to revoke the decision under s.501(3A) of the Migration Act 1958. The decision under s.501CA(4) of the Migration Act 1958 by the Minister is not reviewable under Parts 5 or 7 of the Act.
Neither the explanatory memorandum nor the statutory scheme are a basis upon which any limitation of this Court’s jurisdiction in respect of s.501CA of the Migration Act 1958 should be inferred. The solicitor for the first respondent has tendered in Court a Migration Amendment Character Cancellation Consequential Provisions Bill 2016 that has now lapsed, which provided in it a paragraph for amending s.476(2)(c) and s.476A(1)(c) by omitting the reference to s.501C and substituting reference to s.501BA, s.501C, or s.501CA.
The effect of that amendment if it had been passed would have been to remove the jurisdiction vested in this Court. That amendment has not been passed. The explanatory memorandum to the bill identifies that that bill was intended to ensure that a decision made personally by the Minister under s.501BA or s.501CA is reviewable by the Federal Court of Australia, rather than by the Federal Circuit Court of Australia.
The explanatory memorandum to the bill records that the proposed amendment is consistent with all other character decisions made personally by the Minister, which are reviewable by the Federal Court of Australia and not by the Federal Circuit Court of Australia. That legislation has not been passed and the reference to the intention to achieve a position where all character decisions made personally by the Minister are determined by the Federal Court of Australia is not a matter which in any way constricts or confines the jurisdiction that is vested in this Court.
To the extent relevant, I note that the explanatory memorandum that introduced the amendments including s.501CA upon which weight was placed by the two decisions in this Court referred to above in which transfers have been made, was one referring to the Federal Magistrates Court. This Court is the Federal Circuit Court of Australia, and is a court that regularly exercises s.75(v) Constitutional jurisdiction in the matters before it.
Whilst it is a matter for Parliament to determine what jurisdiction it vests in which Court, there is no obvious logical foundation for not vesting all decisions under the Migration Act 1958 in this Court, as opposed to the Federal Court of Australia.
Moreover, it is important to take into account that this Court has significant resources over and above that of the Federal Court of Australia. There is no legal complexity involved in character related decisions that are the subject of an application under s.75(v) of the Constitution that makes such decisions inappropriate for a potential determination by this Court.
More importantly, in relation to the decisions in this Court where a transfer has taken place, no reference was made by the decisions in this Court to the important principle that it is the duty of Courts to exercise their jurisdiction, see Dietrich v The Queen (1992) 177 CLR 292 at 324. That principle is of importance in relation to maintaining public confidence in the administration of justice by the Courts created under Chapter III of the Constitution.
I accept the submissions of the solicitor for the first respondent that the duty of the Court to exercise its jurisdiction does not impede the discretionary power conferred by s.39 of the Federal Circuit Court of Australia Act 1999. That provision identifies mandatory considerations that the Court must have regard to in considering whether a transfer should take place. Ordinarily, consistent with the above duty, this Court should hear matters within its jurisdiction and it is only if satisfied that the criteria under s.39 of the Federal Circuit Court of Australia Act 1999 warrants a transfer of a matter that the Court should depart from its duty.
It is also of relevance in the present case that unless a transfer is made, the Federal Court of Australia does not have jurisdiction in respect of the subject matter of this decision. That jurisdiction has been vested by the Parliament in this Court. If an order is made for the transfer of the proceedings, the Federal Court of Australia has the benefit of vesting a jurisdiction pursuant to s.476A(1)(a) of the Migration Act 1958.
In relation to the mandatory considerations, the Court must take into account the Rules of Court and in that regard, it is r.8.02 of the Federal Circuit Court Rules 2001 that identifies in r.8.02(4) relevant factors as follows.
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.
Dealing with the first factor identified in r.8.02(4)(a), there is no special question of general importance identified in the present proceedings that makes it desirable for the proceedings to be transferred to the Federal Court of Australia. The mere fact that the subject matter of the jurisdiction that has been invoked is one relating to s.501CA does not of itself identify a question of general importance. All migration decisions under the Migration Act 1958 are of general importance and nothing has been pointed to in the present case that weighs in favour of it being desirable for the matter to be the subject of a decision of the Federal Court of Australia in respect of the s.501CA issue in the present case.
In relation to r.8.02(4)(b), in the circumstances of the present case, the Court notified the parties on 9 June that it could hear the proceedings by the end of July. There is every reason to believe that if the proceedings remain in this Court, they are likely to be heard more promptly and at less cost and at more convenience to the parties than if the proceedings are transferred to the Federal Court of Australia.
In relation to r.8.02(4)(c), as indicated in the present case, following notification by the first respondent of the proposed application for transfer, this Court identified that the proceedings could be promptly heard in this Court. On the material before this Court, I am satisfied that the proceedings will be heard earlier in the Federal Circuit Court of Australia than they would be in the Federal Court of Australia.
In relation to r.8.02(4)(d), there are no particular procedures or processes in the present case that give rise to any basis to believe that a transfer of the proceedings will be more appropriate because of process available in the Federal Court of Australia.
In relation to r.8.02(4)(e), the application is not opposed by the respondent, and the wishes of the parties are clearly a relevant factor for the Court to weigh. In the present case, the wishes of the parties appear to have been informed based on the approach that has been adopted in the two earlier decisions of this Court, which, for the reasons I have given, I regard as clearly wrong. Unless and until otherwise said by the Parliament, this Court has a duty to exercise its jurisdiction in relation to s.501CA of the Migration Act 1958, and applications for a transfer can and should be dealt with in accordance with the considerations identified under s.39 of the Federal Circuit Court of Australia Act 1999 and r.8.02 in respect of the particular cases.
There should not be assumed to be a general principle that because of alleged inadvertence of reference to s.501CA of the Migration Act 1958 in s.476 that there should be a transfer from this busy Court to another busy Court merely because of the decision being made by the Minister under s.501CA of the Migration Act 1958. The transfer of proceedings from one Court to another imposes a burden on that other Court. This Court has substantially greater resources, as I have indicated, than the Federal Court of Australia, and whilst I take into account the wishes of the parties, those wishes are not decisive of whether or not the matter should be transferred.
In relation to s.39(3)(a) of the Federal Circuit Court of Australia Act 1999, to the extent relevant, the matters identified in relation to the rules of the Court under r.8.02 weigh in favour of the matter remaining in the Federal Circuit Court of Australia.
In relation to s.39(3)(b) of the Federal Circuit Court of Australia Act 1999, there are no other associated proceedings that are pending in the Federal Court of Australia. In fact, it is to the contrary. Those proceedings that were brought in the Federal Court of Australia were discontinued. It does not advance the interests of the administration of justice or public confidence to have proceedings commence in one Court, be discontinued and then have the same subject matter brought in another Court and that Court then to send it back to the Court in which the proceedings were originally discontinued.
In relation to s.39(3)(c) of the Federal Circuit Court of Australia Act 1999, this Court’s resources, as I have indicated, are greater than that of the Federal Court of Australia, and are more than sufficient to hear and determine the proceedings that have been brought in this Court.
In relation to s.39(3)(d) of the Federal Circuit Court of Australia Act 1999, the Court is required to take into account the interests of the administration of justice. As I have indicated, the interests of the administration of justice in this particular matter must also take into account the history of the proceedings. In light of the earlier commenced proceedings in the Federal Court of Australia which are discontinued, it does not advance confidence in the administration of justice to have those proceedings transferred back to the original Court in which the proceedings were discontinued.
No member of the public would regard that as efficient. In these circumstances and where the Court has a duty to hear the matter within its jurisdiction, the interests of the administration of justice in the present case weigh in favour of the matter not being transferred to the Federal Court of Australia.
In all the circumstances, I am satisfied that this is an appropriate matter for this Court to perform its duty and hear the matter brought within its jurisdiction. I am satisfied that this is not an appropriate matter to transfer under s.39 of the Federal Circuit Court of Australia Act1999 to the Federal Court of Australia. The application for transfer is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 23 June 2016
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