SZVCP v Minister for Immigration - [2015] FCCA 2576

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCP v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2576

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – application in a case – whether proceedings should be transferred for hearing in Sydney – application allowed – whether proceedings should be transferred to the Federal Court of Australia – application dismissed.

Legislation:

Commonwealth of Australia Constitution Act ss.116, 117

Federal Circuit Court Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 rr.1.03, 8.02

Judiciary Act1903 (Cth), s.78B

Migration Act 1958 (Cth), s.476

SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125

Applicant:

SZVCP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 142 of 2015

Judgment of:

Judge Street

Hearing date:

15 September 2015

Date of Last Submission:

15 September 2015

Delivered at:

Perth

Delivered on:

15 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr P Hannan

Australian Government Solicitor

ORDERS

The proceedings PEG 142 of 2015, PEG 261 of 2015, and SYG 3004 of 2014 be heard concurrently.
The said proceeding be listed for hearing at 10.15am on 3 December 2015 in Sydney.
The applicant may attend by video-link.
The proceedings PEG 142 of 2015 and PEG 261 of 2015 be transferred to the Sydney Registry.
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The previous case management orders in each of the proceedings be vacated.
In each matter the first respondent file and serve in hard copy and electronically the Court Book on or before 30 September 2015.
The applicant file and serve any amended application, affidavits in answer and any outline of submissions the applicant intends to rely on or before 2 November 2015.
The first respondent to file and serve any affidavits and an outline of submissions on or before 23 November 2015.
The application in a case filed 1 September 2015 is dismissed.
The application in a case filed 14 September 2015 is otherwise dismissed.
The application in a case in SYG 3004 of 2014 is dismissed.
Costs with respect to all applications in a case be reserved.
There be liberty to apply on 5 days’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 142 of 2015

SZVCP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application in a case in proceedings within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth). The applicant commenced these proceedings in relation to a determination of the Tribunal on 24 March 2015. Those proceedings have currently been the subject of orders fixing the matter for hearing in February 2016. There are related proceedings involving the same applicant in the Perth registry, being proceedings PEG162 of 2015, which I am informed by the applicant concern an IOTA assessment and the applicant’s claims of fear as a result of the consequences of the data breach, that the applicant says included the release of his information and the potential consequences for him.
That issue of data breach is an issue that overlaps with the current proceedings PEG142 that was addressed by the Tribunal. The applicant also seeks to refer to recent proceedings in the Full Federal Court in relation to that data breach and as being relevant to his cases SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125.
Those proceedings, PEG261, have also been the subject of a timetable for hearing, which again was to take place in February 2016. The applicant has informed the Court that there are also proceedings on foot in the Sydney registry, being proceedings number SYG3004 of 2014, which are also currently listed for hearing in February 2016. The applicant says that those proceedings relate to the applicant’s invasion of privacy and the alleged data breach. As I understand what the applicant said, there is an overlap again concerning the data breach with those proceedings and proceedings PEG142 and PEG261. There are also proceedings in South Australia in the Federal Court of Australia that the applicant has on foot but the case management of those proceedings are a matter for that court.
The application in the case seeks a transfer of the proceedings in Perth to the Sydney registry. It is obviously consistent with the objects of the rules of this Court identified in r.1.03 for the three proceedings in this Court to be heard concurrently before the same Court, particularly given the overlap that the applicant has identified. It is in these circumstances that the Court does propose to transfer the two proceedings in the Perth registry, PEG142 of 2015 and PEG261 of 2015, to the Sydney registry to be heard concurrently with proceedings SYG3004 of 2014.
At the end of these reasons the matter will be fixed for hearing in December 2015, with directions made for the filing of affidavit evidence by the applicant and by the respondent and for submissions. The applicant has also, in the course of the application in a case, sought to have the proceedings transferred to the Federal Court of Australia. The application in a case includes a reference to final relief in the nature of declaratory rights, as well as alleged issues under ss.116 and 117 of the Constitution.
An application in a case is not a vehicle by which declaratory relief can be made as that is substantive final relief. The reference to the provisions of the Constitution raise no real issue, and therefore it is not necessary to consider Judiciary Act 1903, s.78B in relation to those issues. The applicant sought a transfer of the proceedings under s.39 of the Federal Circuit Court Act 1999 (Cth) to the Federal Court. I take into account the provisions in s.39, as well as r.8.02. I am not satisfied that the applicant has identified any issue that is not within the jurisdiction of this Court.
Whilst I accept the importance of the questions raised for the applicant, where this Court is seized of jurisdiction it is the duty of this Court to exercise that jurisdiction unless persuaded that the matter should be transferred to another Court. The proceedings in this case, both in Perth and Sydney, are most likely to be heard and determined at the least amount of cost and the most convenience to the parties if not transferred. The transfer is not supported by the first respondent. I am not satisfied that the interests of the administration of justice warrant a transfer of the proceedings, be it PEG142 of 2015, proceedings PEG261 of 2015 or proceedings SYG3004 of 2014 to the Federal Court of Australia. This court does not know what the issues are in the proceedings already commenced by the applicant in the Federal Court of Australia in South Australia and accordingly there is no basis to conclude that there is sufficient overlap of issues to warrant a transfer to that Court.
In the course of delivery of this judgment, the applicant has intervened to refine the nature of his application to identify that it is only proceedings PEG142 of 2015 that he seeks transferred to the Federal Court insofar as there are issues that this Court considers is beyond its jurisdiction. As expressed in the reasons already, this Court is satisfied it has jurisdiction in respect of the matter that was commenced by proceeding PEG142 of 2015. As for the reasons I have given, I do not propose to transfer proceedings PEG142 of 2015 to the Federal Court, having taken into account the principles in s.39 and r.8.02.
Insofar as the applicant has sought an order preventing his removal to Christmas Island, it is clear that the applicant’s current detention relates to applications by the applicant for relief in relation to the Migration Act 1958, and on the face of the material before the Court, his continued detention is lawful. There is no basis upon which it is appropriate to grant interlocutory relief at this stage in relation to where the applicant is held in detention, and for that reason I refuse to grant any interlocutory relief in terms of the application in a case insofar as it concerns the location of the applicant’s continued detention.
In relation to the applicant’s request for attendance in person before the Court, there are electronic video facilities that are available and by which the applicant can attend from wherever location the applicant is being held in detention. Electronic video facilities are an efficient and just means that can also in certain circumstances be less expensive for the determination of matters in this Court. This Court has used electronic video facilities in trials involving witnesses of fact and creditability issues as well as complex legal issues and the use of this technology by the Courts is a useful process in the administration of justice. I do not propose to make any direction requiring the applicant to attend in person in respect of any proceedings. The applicant has also sought relief, directing the Court effectively to obtain evidence for the applicant and to issue subpoenas. It is not the role of the Court to enter the arena in relation to the gathering of evidence, nor is it appropriate for the Court, except in exceptional circumstances, to engage in the issuing of subpoenas. This is not a case of exceptional circumstances.
It is not appropriate for the Court to issue subpoenas in respect of the various persons that the applicant has identified. It is a matter for the applicant to seek relevant evidence in respect of the issues raised by the respective proceedings. The Court raised with the applicant that the individuals that he referred to do not in any way appear to be relevant to any jurisdictional issue raised by the proceedings that have been identified, and on that ground alone it would not be appropriate for subpoenas to be issued in respect of those persons. The Court does propose to provide a timetable for the applicant to be able to put on evidence in respect of all three applications.
The Court also has before it a second application in a case which seeks relief in relation to the place of detention for the applicant and the transfer of proceedings, and for the reasons I have given, the application in a case dated 12 September 2015 is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 23 September 2015