SZDUS v Minister for Immigration - [2005] FMCA 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUS & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 476

MIGRATION – Protection visa.

PRACTICE & PROCEDURE – Transfer of proceedings to Federal Court – order for costs – costs thrown away as a result of a late application.

Federal Magistrates Act 1999 (Cth), s.39

NAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6
SZANS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 41

First Applicant:

SZDUS

Second Applicant:

SZDUT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1785 of 2004

Delivered on:

8 April 2005

Delivered at:

Sydney South

Hearing date:

8 April 2005

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Mr Jones

Solicitors for the Applicant:

Michael Jones Solicitor

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Pursuant to s.39 of the Federal Magistrates Court Act 1999, the matter is transferred to the Federal Court of Australia for hearing.
The Respondent is to pay the Applicants’ costs fixed in the sum of $825.00.
I NOTE that the matter is ready to proceed to a Final Hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1785 of 2004

SZDUS

First Applicant

And

SZDUT

Second Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application I am asked to deal with as a prior issue is an application by the Respondent to transfer these proceedings to the Federal Court pursuant to s.39 of the Federal Magistrates Act.
The substantive application before the Court is an application by two Applicants in respect of a decision of the Refugee Review Tribunal confirming a decision of the delegate not to grant protection visas.
The matter came before the Court on the 17 September 2004. It was listed for hearing at 2.15 this afternoon, the 8 April. The application was originally listed before one of my colleagues but because of some internal arrangements in the Court a decision was made that I would hear it and my colleague would involve himself in other duties.
I am informed by counsel for the Respondent and I accept it to be true, that the change in the identity of the judicial officer hearing the case is not a matter that is of any significance insofar as the application to transfer the proceedings to the Federal Court is concerned.
The reason why it is sought to transfer these proceedings relates to a judgment of the High Court in the matter called NAGV v Minister for Immigration, the citation to which is 2005 HCA 6. The decision was made on 2 March 2005 which was just over a month ago.
Quite clearly, when the matter was listed for hearing in this Court last year, neither of the parties could have been aware of the decision in NAGV. It is quite clear to me that the decision in NAGV v The Minister is a decision of some significance. Indeed, Mr Jones, in his submission, has pointed out why the decision is significant and what that significance is. What the Respondent is saying is that in the light of the High Court decision in NAGV, this is a matter which should more properly be decided at first instance by a single judge of the Federal Court.
True it is, that if the matter goes on appeal and an appeal is not unlikely, the matter would end up before the Full Court of the Federal Court. It is certainly the situation that whilst the majority of appeals from the Federal Magistrates Court are heard by a single judge of the Federal Court under delegation, in a case of some importance, and there are a number, a Full Federal Court of three judges would be empanelled to hear the appeal.
It has been put to me and I agree; that no matter from which Court an appeal would emanate, a Full Federal Court of three judges would be the most likely forum in which any appeal would be heard.
If that is the case; why then should the proceedings be transferred at this stage? Counsel for the Respondent has pointed out the principle of comity, referred to fairly recently in the Full Court decision of SZANS v Minister for Immigration and Multicultural and Indigenous Affairs.

I am quite satisfied that a decision, at first instance of a judge of the Federal Court, is not binding on the Federal Magistrates Court.
Having said this, I am equally satisfied that such a decision would be persuasive. A Federal Magistrate would be unlikely to depart from the principles set out in such a decision unless he or she were persuaded that the decision was clearly wrongly decided or unless the case could be distinguished. In the ordinary course of events a decision of that nature would be followed in this Court
Mr Jones for the Applicants has indicated that he is ready, willing and able to run the case today. It is a matter of concern that this application was not foreshadowed until approximately two days ago, two days before the matter was listed for final hearing. The Applicants want the matter heard. The Applicants want to have the matter decided. As Mr Jones said, contrary to popular belief, not all applicants want to seek every delay that they can get in order to gain whatever advantage they can get from delay. They have proceedings hanging over their head. They are living in the community. They are not in detention and they can continue to live in the community and go about their business until the matter could be heard in the Federal Court. There is no information before me as to when, if I were to transfer the matter, the Federal Court would be able to hear it.
I have raised the issue of costs and it seems to me that an application of this nature brought 48 hours before the hearing was to commence would render the party seeking such a transfer, liable to an order for costs thrown away. Mr Jones, for the Applicants, points out that he is ready, willing and able to run the case today. Indeed, he has filed written submissions in plenty of time and my observation of those submissions is that they have been prepared with some care.
It is not in issue that he is not otherwise prepared to run the case as far as preparation of oral submissions is concerned and he has of course set aside the time today to hear it. His argument is that the transfer would lead to a delay in the matter being resolved, certainly at first instance. That delay would be harmful to his clients in that they would have the matter hanging over their head for longer. The question of costs of course is a matter that the Court can deal with.
The argument for the Respondent is that - and I accept that it was submitted with the greatest respect - but if a first instance decision is to go on appeal and the likelihood of an appeal is greater in this case than in most, some thought would need to be given to what would happen in the interim.
The argument is that in the interim a decision of a single judge of the Federal Court would carry greater weight than a decision of a single Federal Magistrate, notwithstanding the principal of comity previously referred to.
In a perfect world that situation would not be so. Regrettably, I am obliged to admit that there is some force in this argument.
However, my view is that generally the profession would perhaps be more comfortable with a first instance decision on what is, I believe, an important point if it were to come from a single judge of the Federal Court than a single Federal Magistrate.
It is for that reason that I propose to accede to the application to transfer the matter to the Federal Court for hearing. I have foreshadowed however that the costs that have been thrown away by this late application is a matter that needs to be dealt with today. It is the practice of this Court, in making a costs order, to fix an amount rather than to leave the amount to be decided. I am happy to stand the matter down for a few minutes, having indicated my intention, to allow parties advisers to have some discussion as to what an appropriate amount would be. I am mindful of the fact that costs have been thrown away and in my view the Applicants should be well and truly reimbursed for that situation.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 18 April 2005