Wozniak v Assistant Minister for Immigration
[2016] FCCA 1918
•15 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WOZNIAK v ASSISTANT MINISTER FOR IMMIGRATION | [2016] FCCA 1918 |
| Catchwords: MIGRATION – Application to review decision of 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 justice – matter transferred. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.39 Migration Act 1958 (Cth), ss.476, 501A, 501B, 501C, 501CA Federal Circuit Court of Australia Rules 2001 (Cth), r.8.02 |
| Cases cited: AMK16 v Assistant Minister for Immigration [2015] FCCA 2328 Poroa v Minister for Immigration and Border Protection [2015] FCA 1313 Tusitala v Assistant Minister for Immigration (2015) 304 FLR 246; [2015] FCCA 3482 |
| Applicant: | ALAN WOZNIAK |
| First Respondent: | ASSISTATN MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 1192 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 15 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
Leave is granted to the Respondent to file an application in a case and supporting affidavit by close of business today.
Pursuant to s.39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) the proceedings be transferred to the Federal Court of Australia.
The Respondent pay his own costs of the application to transfer the proceedings to the Federal Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1192 of 2016
| ALAN WOZNIAK |
Applicant
And
| ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
On 13 May 2016 the Applicant filed an application seeking review of a decision made under s.501CA of the Migration Act 1958 (Cth) (the Act) by the Assistant Minister for Immigration.
The matter was listed for directions before me on an expedited basis as Mr Wozniak is in detention. Prior to the directions hearing the solicitors for the Respondent foreshadowed with chambers and with Mr Wozniak that they intended to make an application at the directions hearing that the matter be transferred to the Federal Court of Australia.
Today the Respondent relied on an application in the case and a supporting affidavit to be filed (with leave) through the electronic filing system. In her affidavit of 14 June 2016 Ms Blackadder, a solicitor in the employ of the solicitors for the Respondent, attested that on instructions she wrote to the Applicant on 31 May 2016 seeking his consent to a transfer of the proceedings from this court to the Federal Court of Australia. I note that the fact of consent of the Applicant, while relevant, would not, in itself, have led to the matter being transferred (see s.39(3) of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act).
The letter of 31 May 2016 informed the Applicant that although this Court has jurisdiction under the Migration Act in relation to such proceedings, the Respondent was of the view that it was “through error” that the Parliament had failed to exclude decisions made by a Minister personally under s.501CA(4) of the Act from the jurisdiction of the Federal Court (which has jurisdiction in relation to review of similar decisions made under ss.501A, 501B and 501C of the Act). It was also suggested that the matter was sufficiently complex to warrant transfer.
The Respondent maintained and expanded on these contentions in submissions today, referring also to the issues raised and the approach taken in cases such as AMK16 v Assistant Minister for Immigration [2015] FCCA 2328 and Tusitala v Assistant Minister for Immigration (2015) 304 FLR 246; [2015] FCCA 3482.
In particular, the Respondent submitted that it was in the interests of the administration of justice (see s.39(3)(d) of the FCCA Act) to transfer the proceedings to the Federal Court as decisions under s.501CA were of a similar nature to other decisions in relation to which Parliament had demonstrated a clear intention that the Federal Court, the superior court, (rather than this court) have jurisdiction.
Mr Wozniak did not consent to the application. He submitted today that if this court had jurisdiction then there was no identified or apparent advantage in a transfer to the Federal Court. He suggested that it may be some kind of “ego thing” and contended that if it was possible for the matter to be dealt with by this court, then he saw no reason why that should not occur.
In considering this application I have had regard to the matters in s.39 of the FCCA Act and Rule 8.02 of the Federal Circuit Court of Australia Rules 2001 (Cth) (the FCCA Rules).
The Applicant seeks relief in relation to a decision made by the Assistant Minister personally under s.501CA of the Act not to revoke a decision of a delegate to cancel his visa.
It is not in dispute that this court has jurisdiction under the generally expressed provision in s.476 in the Migration Act in relation to these proceedings. There is an express exclusion in s.476(2)(c) which does not apply, but which, in effect, the Respondent submits ought, but for an oversight, include decisions made under s.501CA as well as decisions made under ss.501, 501A, 501B or 501C of the Act in relation to which the Federal Court has original jurisdiction (see s.476A(1)(c)).
In addition, the Federal Court has original jurisdiction in relation to a migration decision if this court transfers a pending proceeding to it under s.39 of the FCCA Act (see s.476A(1)(a) of the Migration Act) (and see Tusitala v Assistant Minister for Immigration [2015] FCA 1188 and Poroa v Minister for Immigration and Border Protection [2015] FCA 1313).
A Bill introduced into the Federal Parliament earlier this year, the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, included a provision which would have amended the Migration Act to confer jurisdiction on the Federal Court in relation to review of decision made under s.501CA of the Act and to take it away from this court. However that Bill lapsed pending the elections. The approach taken in that Bill was consistent with the view that the interests of the administration of justice would be served by decisions under s.501CA being the subject of review by the Federal Court (see Tusitala (FCCA) and AMK16 and having regard to the “legislative drafting oversight” considered in Poroa at [15]-[17]).
Section 39(1) of the FCCA Act provides that this court may, if a proceeding is pending, transfer the proceeding to the Federal Court. In deciding whether to do so the court must have regard to the factors set out in s.39(3) of the FCCA Act which is as follows:
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
Rule 8.02(4) of the FCCA Rules is as follows:
(4) 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.
In this case there is no suggestion that these proceedings are likely to involve questions of “general importance”, insofar as that can be determined on the limited material presently before the court. There is no evidence as to whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience. There is, however, nothing to indicate that there would be any more cost to the parties. In terms of convenience, the Federal Court is willing to take matters of this nature. It proceeds with expedition where a party is in detention. Indeed it may well be that the matter would be heard earlier in the Federal Court than in this court, although there is no evidence before me in that respect. While I do not give significant weight to this factor, at the least, there is no indication that the matter would not be heard within the same sort of timeframe as would apply in this court.
There is no suggestion that the Federal Court has particular procedures appropriate for the class of proceeding in issue, although it must be said that as the Federal Court has jurisdiction in relation to review of Ministerial decision under the similar provisions in ss.501, 501A, 501B and 501C of the Act, it may be seen as having particular expertise in relation to issues arising in matters of that nature. This court does not have jurisdiction in relation to Ministerial decisions under those provisions.
It is also relevant to have regard to the wishes of the parties. I have taken into account those wishes. The Assistant Minister seeks a transfer. The Applicant has indicated that he does not consent to the transfer. He has indicated that, in effect, he sees no reason why the matter should be transferred to the Federal Court as this court has jurisdiction. He does not see any advantage in a transfer. He has raised an issue as to costs, which is legitimate and which is addressed below.
Turning to the other matters in the FCCA Act, there is no suggestion that proceedings in respect of an associated matter are pending in the Federal Court. There is no doubt that the resources of this court are strained, but there is no suggestion that the resources are not sufficient to hear this particular matter, albeit that giving priority to this matter because the Applicant is in detention could mean displacing some other matter presently listed for hearing.
That brings me back to the issue of the interests of the administration of justice, mentioned above. The power conferred on the Minister (and in this case exercised by the Assistant Minister) by s.501CA of the Act is very similar to the powers conferred on the Minister by the associated provisions in ss.501, 501A, 501B and 501C in relation to which jurisdiction was conferred on the Federal Court and not on this court. Those provisions predate s.501CA (which was inserted in the Act by Act No. 129 of 2014). As was submitted and as has been acknowledged in the decisions cited, it appears likely (and is consistent with the introduction of the 2016 Bill) that it was through inadvertence that Parliament did not exclude from this court’s jurisdiction decisions made under s.501CA of the Act when that provision was introduced.
While a lapsed Bill cannot be seen as representing the intention of the Parliament, nonetheless, I agree with the view of Judge Manousaridis in AMK16 that had Parliament turned its mind to the question of which court should have jurisdiction to entertain such claims when s.501CA was introduced (and see s.501 of the Act), consistent with the approach taken in relation to the similar provisions which relate to decisions of the Minister or Assistant Minister in circumstances in which a visa has been cancelled, in all likelihood it would have excluded jurisdiction from this court and conferred it on the Federal Court. In any event, the present proceeding is substantially of the same nature as those arising under the associated provisions in relation to which the Federal Court has jurisdiction.
In all the circumstances of this case, I am of the view that it is in the interests of the administration of justice to transfer the proceedings to the Federal Court. I have borne in mind Mr Wozniak’s expressed opposition to a transfer, but I consider that on balance it is appropriate to make the order sought that the proceeding be transferred to the Federal Court of Australia pursuant to s.39 of the FCCA Act having regard, in particular, to the interests of the administration of justice.
However, the Applicant has an understandable concern about incurring additional costs. I do not consider it appropriate that the costs of the transfer application should be costs in the proceedings, as was proposed to Mr Wozniak by the solicitors for the Respondent. Rather, the Respondent should pay his own costs of the application for transfer of the proceedings.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 29 July 2016
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