Tusitala v Assistant Minister for Immigration - [2015] FCCA 3482

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUSITALA v ASSISTANT MINISTER FOR IMMIGRATION

[2015] FCCA 3482

Catchwords:
MIGRATION – Application to review decision of the Assistant Minister for Immigration under s.501CA of the Migration Act 1958 (Cth) – application to transfer proceedings to the Federal Court of Australia – interests of the administration of justice – matter transferred.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.39, 476, 476A, 477, 2014, 501A, 501B, 501C, 501CA

Fowell v Assistant Minister for Immigration [2015] FCCA 2328
Tusitala v Assistant Minister for Immigration [2015] FCA 1188

Applicant:

ANDRE ANDREW TUSITALA

First Respondent:

ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3078 of 2015

Judgment of:

Judge Barnes

Hearing date:

17 December 2015

Delivered at:

Sydney, via videolink to Albany

Delivered on:

17 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Hooper of DLA Piper

ORDERS

The proceedings in the Federal Circuit Court of Australia (SYG3078/2015) be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Circuit Court Australia Act 1999 (Cth).
Costs be costs in the proceedings in the Federal Court of Australia.
The Court notes that the solicitor for the Respondent will keep the Applicant informed of the progress of the proceedings in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3078 of 2015

ANDRE ANDREW TUSITALA

Applicant

And

ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Tusitala filed an application on 12 November 2015 seeking review of a decision of the Assistant Minister for Immigration and Border Protection, under s.501CA of the Migration Act 1958 (Cth) (the Act) not to revoke a visa cancellation decision. The Assistant Minister filed an Application in a Case on 30 November 2015 seeking that the proceedings be transferred to the Federal Court of Australia.
In support of the Application in a Case, the Assistant Minister relies on an affidavit affirmed by Katherine Nicole Hooper on 30 November 2015 attesting to her unsuccessful attempts to contact the Applicant to ascertain his wishes in relation to the transfer. Today the Applicant told the court that he wanted his matter to stay in the Federal Circuit Court. He did not know why, but someone had told him that it would be a better place for his matter to be than in the Federal Court.
This matter has a somewhat unusual background as explained by Perry J in Tusitala v Assistant Minister for Immigration [2015] FCA 1188. Initially the Applicant sought to commence these proceedings in this court but he was apparently advised by the registry (incorrectly) to file his application in the Federal Court. The Federal Court found that it lacked original jurisdiction to entertain the application for review as commenced in that court under s.476A of the Act but that this court had jurisdiction under s.476(1) of the Act. However, as observed at [13] the Federal Court would have jurisdiction if this court transferred such proceedings to the Federal Court (see s.476A(1)(a) of the Act).
In circumstances where there was evidence before the Federal Court that the registry of this court retained a copy of the originating application which the Applicant had sought to file within the time period specified in s.477 of the Act, Perry J dismissed the application filed in the Federal Court. Subsequently, the registry accepted the originating application as filed in this court with effect on the date that it was first presented for filing.
However, while the Federal Court does not have original jurisdiction in relation to this matter if commenced in that court, s.476A(1) otherwise confers original jurisdiction on the Federal Court in relation to decisions made personally by the Minister (or the Assistant Minister) under a number of related sections: 501, 501A, 501B or 501C but does not refer to a decision under s.501CA, notwithstanding that it is of the same nature as the decisions in relation to which the Federal Court is otherwise given original jurisdiction. This can be seen as something of an anomaly. It is in those circumstances that the Assistant Minister seeks that the matter be transferred to the Federal Court. Section 39 of the Federal Circuit Court of Australia Act 1999 (Cth) provides that this court may transfer proceedings to the Federal Court. In deciding to do so, the court must have regard to any rules of court, whether proceedings in respect of an associated matter are pending in the Federal Court, whether the resources of this court are sufficient to hear and determine the proceeding and the interests of the administration of justice (see s.39(3)).
Rule 8.02 subrule (4) of the Federal Circuit Court Rules 2001 (Cth) (the Rules) identifies factors in addition to those required to be considered under the Act that may be considered by the court, including 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 on a point in issue; whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience; whether the proceeding will be heard earlier in this court; and the availability of particular procedures for the class of proceedings; as well as the wishes of the parties.
The only matter on which Mr Tusitala addressed the court was his wishes. As indicated, he stated that he preferred the matter to remain in this court, although he was not able to identify a reason for that, other than advice that he had received in general terms. The circumstances in this case are not dissimilar to those considered by Judge Manousaridis in Fowell v Assistant Minister for Immigration [2015] FCCA 2328, where proceedings in relation to a decision made under s.501CA were commenced in this court, and there was an application to transfer the matter to the Federal Court on the basis that it was an anomaly that the Parliament had failed to exclude from this court’s jurisdiction and to confer on the Federal Court original jurisdiction in relation to applications under s.501CA of the Act. His Honour found it was appropriate in the interests of the administration of justice that the Federal Court should exercise jurisdiction under 501CA of the Act (as well as under ss.501, 501A, 501B and 501C).
In this case, I have had regard to all of the circumstances referred to in s.39 of the Federal Circuit Court of Australia Act and the matters referred to in the Rules. It is not suggested, and there is nothing to indicate, at least at this stage, that the proceeding is likely to involve a question of general importance such that it would be desirable for there to be a decision of the Federal Court. There is no evidence to indicate that it would be heard and determined at less cost or convenience if transferred. Nor is there evidence to indicate whether the proceeding would be heard earlier in this court (although it has to be said that this court has a considerable backlog of administrative law matters). This is a factor that would support rather than go against the transfer application. There is no suggestion that there are particular procedures in one court appropriate for this class of proceeding, although proceedings of a similar nature are within the original jurisdiction of the Federal Court.
I have had regard to Mr Tusitala’s wishes and also to the fact that there are no other proceedings in respect of an associated matter in the Federal Court and that it has not been suggested that the resources of this court are not sufficient to hear and determine the proceedings.
However, of significance in this case is the question of the interests of the administration of justice. I bear in mind that the power conferred on the Minister (and in this case the Assistant Minister) by s.501CA of the Act is similar to the powers conferred by each of ss.501, 501A, 501B and 501C of the Act in relation to which jurisdiction to hear applications is conferred on the Federal Court and not on this court. Parliament has manifested a clear intention that the jurisdiction to entertain actions seeking constitutional writs in relation to decisions of the Minister or the Assistant Minister personally in relation to visa cancellation or refusals ought to be heard by the Federal Court, rather than by this court.
It appears that it was through inadvertence that the Parliament did not exclude from this court’s jurisdiction under s.476(1) of the Act decisions made under s.501CA of the Act. I agree with Judge Manousaridis that had Parliament turned its mind to the question of which court should have jurisdiction to entertain such claims, it would have provided that such jurisdiction be excluded from this court’s jurisdiction and be conferred on the Federal Court. In these circumstances, it would be in the interests of the administration of justice to transfer the proceeding to the Federal Court, given that it is the kind of proceeding that Parliament has indicated it considers should be the subject of the jurisdiction of the Federal Court and not of this court.
In all the circumstances, and notwithstanding Mr Tusitala’s expressed opposition to a transfer, I consider that it is appropriate to make the order sought by the Assistant Minister that the proceedings be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Circuit Court of Australia Act.

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

Associate:

Date: 23 December 2015