Rashidzadeh v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application for Constitutional writ relief in respect of a decision made by a delegate of the respondent, the Minister for Immigration and Citizenship (the Minister). The proceeding is clearly a migration decision, as defined in s 5 of the Migration Act 1958 (Cth) (the Migration Act). Accordingly, by reason of s 476A of the Migration Act, the Federal Court has only limited jurisdiction, in particular, in four circumstances, none of which are present in relation to the decision in question. It is therefore common ground that the Federal Court does not have jurisdiction in relation to the matter that is the subject of this proceeding. The parties have therefore requested the Court to transfer the proceeding to the Federal Magistrates Court, pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). 2 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. 3 I had some reservation as to whether there would be any utility in transferring the matter to the Federal Magistrates Court, in the light of ss 476 and 477 of the Migration Act. Section 476(1) provides that the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(5) of the Constitution. However, s 477(1) provides that an application to the Federal Magistrates Court for a remedy to be granted in exercise of the Court's original jurisdiction under s 476 in relation to a migration decision must be made to the Court within 28 days of the actual notification of the decision. That period of 28 days has now lapsed in relation to the migration decision in question. 4 However, the question of whether or not the time bar in s 477 would operate is a matter for the Federal Magistrates Court, and the better view may well be, although I do not express a view about it one way or the other, that, once the Federal Magistrates Court is seized of the matter, the time bar in s 477 would not apply. It is common ground, as I understand the position, that the proceeding commenced in this Court was commenced within the 28 day period. 5 Accordingly, I propose to make orders in terms of the consent orders that the parties have submitted to the Court. I certify that the preceding five (5) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.