BZX23 v Minister for Immigration, Citizenship and Multicultural Affairs

RARES J: 1 Yesterday, on 2 August 2023, the applicant, who is in immigration detention on Christmas Island, filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) seeking a writ of mandamus or prohibition or an injunction preventing the respondent Minister from acting on the notice of intention to remove from Australia given to the applicant on 31 July 2023. The notice informed the applicant that arrangements had been made for his anticipated removal on 8 August 2023. 2 The application came before me as duty judge last night. 3 It was obvious that s 476A of the Migration Act 1958 (Cth) excludes this Court from having any original jurisdiction in relation to a migration matter such as this, where the relief the applicant seeks is a writ under s 75(v) of the Constitution and for which s 476(1) vested jurisdiction in the Federal Circuit and Family Court of Australia (Division 2) (the Division 2 Court). 4 On my own initiative, I considered that the proceeding should be transferred to the Division 2 Court pursuant to s 32AB(1), (2)(b) and (6) of the Federal Court of Australia Act 1976 (Cth), which provide: 32AB Discretionary transfer of civil proceedings to the Federal Circuit and Family Court of Australia (1) If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit and Family Court of Australia. (2) The Court may transfer a proceeding under subsection (1): … (b) on its own initiative. … (6) In deciding whether to transfer a proceeding to the Federal Circuit and Family Court of Australia under subsection (1), the Court must have regard to: (a) any Rules of Court made for the purposes of subsection (4); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia; and (c) whether the resources of the Federal Circuit and Family Court of Australia are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. (emphasis added) 5 In accordance with s 32AB(6)(a) and r 27.01(3) of the Federal Court Rules 2011, I consulted the Chief Justice who, in turn, consulted, and obtained the agreement to the transfer of, the Chief Judge of the Division 2 Court. Because of the urgency and the clear lack of jurisdiction in this Court to grant the relief sought, I dispensed, under r 1.34, with any consultation with the parties that, ordinarily, should occur in accordance with r 27.01(1). 6 This morning I made an order under s 32AB(1) transferring the proceeding to the Division 2 Court. These are my reasons for doing so.

A conflict in the Authorities 7 In Zurich Australian Insurance Ltd v Atradius Credito Y Caucion S.A. De Seguros Y Reaseguros [2022] FCA 709, Allsop CJ held that this Court had no jurisdiction to order the removal of a matter which the Division 2 Court had no jurisdiction to hear and determine from the Division 2 Court into this Court under s 32AC of the Federal Court Act. That matter concerned a proceeding purportedly commenced in the Division 2 Court under the Insurance Contracts Act 1984 (Cth) in circumstances in which the Parliament had not vested any jurisdiction under that Act in the Division 2 Court. The Chief Justice said that the powers of each of this Court to remove, under s 32AC of the Federal Court Act, and the Division 2 Court to transfer, under s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), proceedings in the Division 2 Court to this Court (at [10]-[11]): depend upon the prepositional phrase that "a proceeding is pending" in the FCFCoA. Analogous language is found in s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). In seriously considered dicta, Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 at 421 [14] stated that an application for transfer under s 5 "is brought upon by the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked". This was applied by Greenwood J in Amalia Investments Ltd v Cirgtel Global Network NV (No 2) [2011] FCA 1270; 198 FCR 248 at 255 [35] as follows: It follows therefore that once it is clear (or a concession is made) that the proceeding fails to regularly invoke the jurisdiction of the transferor court, the assumption upon which s 5 operates and is to be engaged, fails to be satisfied. Although the proceeding in the Federal Court is a pending proceeding as a question of fact, it is not a proceeding which regularly invokes the jurisdiction of the court and thus s 5 is not engaged at all. In my view, these observations apply equally to s 153 of the FCFCoA Act and s 32AC of the Federal Court Act. It is not possible for the FCFCoA to transfer, or for this Court to remove, proceedings commenced in the FCFCoA which do not regularly invoke the jurisdiction of the FCFCoA. Both provisions depend on the hypothesis that a "proceeding is pending" before the FCFCoA: that is, a proceeding within the jurisdiction of that court. Be it otherwise, constitutional concerns could arise as to ss 32AC and 32AD of the Federal Court Act, particularly sub-sections 32AC(8) and 32AD(3) (which confirm the Federal Court's jurisdiction to hear proceedings transferred or removed from the FCFCoA which are not otherwise within the Federal Court's jurisdiction), conferring non-federal judicial power on the Federal Court: Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511. 8 With respect, s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Cross-vesting Act) is a different statutory provision that operates in a different context. In Amalia Investments Ltd v Cirgtel Global Network NV (No 2) (2011) 198 FCR 248, Greenwood J had to consider the exercise of the power under s 5(4) of that Act, which now provides: 5 Transfer of proceedings … (4) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) (in this subsection referred to as the first court); and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and (B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross‑vesting of jurisdiction; and (C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub‑subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and (D) the interests of justice; it is more appropriate that the relevant proceeding be determined by that Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory; the first court shall transfer the relevant proceeding to that Supreme Court. (emphasis added) 9 The scheme of s 5 of the Cross-vesting Act presupposes the existence of two proceedings, each of which is pending in a different court, and requires, relevantly, this Court when asked to transfer proceedings to consider the relationship between both proceedings and the appropriateness of each court to determine each proceeding, including (in a case to which s 5(4)(b)(ii) applies) by reference to the jurisdiction that the transferring court would have had other than by reason of the Cross-vesting Act itself or the laws of the Australian Capital Territory or the Northern Territory. 10 While it may be accepted that, as Allsop CJ observed, the expression "a proceeding is pending" is common to s 32AC of the Federal Court Act and s 5 of the Cross-vesting Act, the Parliament expressed the balance of those two sections in different language. The statement in the dissenting joint judgment of Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421 [14], on which Allsop CJ relied, was directed to the issue of whether, there being two courts seized of parts of a matter, the court asked to transfer its proceeding to the other court should do so where, as they said: In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. (emphasis added) 11 Thus, Gleeson CJ, McHugh and Heydon JJ explained, s 5 of the Cross-vesting Act assumes that the proceeding in the court asked to transfer proceedings is within that court's jurisdiction and attracts its duty to hear and determine it, but then requires consideration of the proceeding in the proposed transferee court and its relationship with the one in the proposed transferor court. As Gummow J, with whom Hayne J agreed at 468 [177], said (at 437 [72]): Section 5 assumes the regular invocation of jurisdiction, both as to amenability of the defendant to process and as to subject matter. Therefore, regular invocation of jurisdiction itself does not favour the disposition of a transfer application by refusing it on the basis that to allow it could not be in the interests of justice. (emphasis added) 12 Callinan J noted (at 477-478 [216]-[217]) that the recital to the Cross-vesting Act identified two of the consequences of "forum shopping" which he said the legislature regarded "as an "evil": see also per Kirby J at 462-463 [154]-[160]. 13 Importantly, Allsop CJ did not discuss s 32AB of the Federal Court Act or s 476 of the Migration Act, and does not appear to have been referred to, and so did not consider, the earlier decisions of judges of the Court that had held that this Court had power to make an order transferring a proceeding to the Division 2 Court (or its predecessor, the Federal Circuit Court of Australia, as its most recent name was before the creation of the Division 2 Court) under s 32AB, even though this Court had no jurisdiction to hear and determine it under s 476 of the Migration Act. 14 In Whittaker v Minister for Immigration and Border Protection [2017] FCA 494, R Derrington J collected several of the authorities to that time and concluded that this Court could transfer a proceeding under s 32AB even though it had no jurisdiction to hear and determine it. He followed the decision of Emmett J in Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168, who held at [2] (see also Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188 at [14] per Perry J): Section 32AB(1) provides that, if a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Magistrates Court. "Proceeding" is defined in s 4 as a proceeding in the Court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal. Even though it is common ground that the Court does not have jurisdiction to resolve the dispute between the parties in this proceeding, there is nevertheless a proceeding pending in this Court. Accordingly, I am satisfied that the Court has power and jurisdiction, pursuant to s 32AB, to transfer the proceeding to the Federal Magistrates Court. (emphasis added) 15 In Willocks v Anderson (1971) 124 CLR 293 at 300, Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ said, after finding that the High Court had no jurisdiction to hear a proceeding commenced by petition: Although this Court has no jurisdiction to grant the relief sought by this petition, it has ample power to make an appropriate order with regard to the costs of the proceedings. (emphasis added) 16 Moreover, s 43(1) of the Federal Court Act confers jurisdiction on the Court or a judge of the Court "to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction)", with some limited exceptions. Thus, s 43(1) proceeds on the basis that a proceeding can be "before the Court", which appears to involve the same concept as "a proceeding pending in the Court" as used in s 32AB(1), even though the proceeding has been, or is liable to be, dismissed for want of jurisdiction. 17 Indeed, the concept of a proceeding, as defined in s 4 of the Federal Court Act and used throughout it, is that of a process in which the Court is called on to exercise its jurisdiction, even if that exercise involves the determination of whether the Court has jurisdiction to hear and determine the matter. If the Court finds that it has no such jurisdiction, it nonetheless exercises the judicial power of the Commonwealth in respect of the proceeding by making an order dismissing the proceeding (or, as s 43(1) puts it, dismissing the proceeding for want of jurisdiction). The order for dismissal is necessary to quell the controversy as to whether or not the Court has jurisdiction in the matter, even though the order does not determine any right or liability. As Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 639-640 [14]: Before the enactment of any cross-vesting legislation, those sections (other than s 39B(1A)(c) of the Judiciary Act (Section 39B(1A)(c) of the Judiciary Act was inserted by the Law and Justice Legislation Amendment Act 1997 (Cth) and came into effect on 17 April 1997)) gave the Federal Court and the Family Court jurisdiction to make orders dismissing proceedings on the ground that they were not within the jurisdiction of the court. It mattered not whether the basis of the proceedings was the common law or valid or invalid State or federal legislation. If the proceedings were not within the jurisdiction of the Federal Court or the Family Court, those courts had authority to make binding orders that the proceedings were not within their jurisdiction. Want of jurisdiction might arise from the fact that no federal law vested the jurisdiction in the court or because the Parliament had no constitutional power to make laws with respect to the subject matter which it had purported to vest in the federal court. Under s 19 of the Federal Court Act or s 31(1)(d) of the Family Law Act, the Federal Court and the Family Court had jurisdiction, for example, to dismiss for want of jurisdiction a petition to wind up a company under State legislation, or to dismiss an action for damages for a tort or breach of contract which was not within the accrued jurisdiction of the court. The enactment of the cross-vesting legislation did not affect the jurisdiction of those courts, as superior courts of record, to hold that they had no jurisdiction to make orders in proceedings commenced in those courts. (emphasis added) 18 Here, the applicant, who is acting for himself, has mistakenly brought a proceeding in this Court. There is no suggestion that he intended to engage in forum shopping or any abuse of process. Rather, he just made an understandable (from the point of view of a litigant in person) mistake in choosing the wrong court in which to seek relief. 19 There is no reason to think that the Parliament intended s 32AB of the Federal Court Act to apply only to a proceeding in federal jurisdiction (as this undoubtedly was) that this Court had jurisdiction to hear and determine. Rather, s 32AB is not concerned with substantive questions, but is a procedural provision that the Parliament intended would apply and operate as s 32AB(6)(d) provides, by the Court exercising the power to transfer having regard to, among other considerations "the interests of the administration of justice" (emphasis added). 20 The only consequence of an order made under s 32AB(1) is that a proceeding pending in this Court will be transferred to the Division 2 Court. It is in the interests of the administration of justice that the applicant and the Minister have the proceeding placed before a court that has jurisdiction to hear and determine it, rather than this Court dismissing it and requiring the applicant to begin again by filing a new proceeding in the Division 2 Court. As Emmett J observed in Rashidzadeh [2008] FCA 1168 at [3]-[4], a dismissal of a proceeding filed outside the ordinary jurisdiction of the Court such as this, rather than a transfer, might cause unnecessary prejudice in some situations.

Conclusion 21 For these reasons, I made the order transferring the proceeding to the Division 2 Court. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.