SZQBQ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 25 March 2011, the Applicant commenced a proceeding in the Federal Magistrates Court of Australia. 2 On 20 July 2011, a Federal Magistrate referred that proceeding to this Court: SZQBQ v Minister for Immigration and Citizenship [2011] FMCA 574. In doing so, the Federal Magistrate set forth such reasons as were given in a short judgment of some five paragraphs. Relevantly for present purposes he said: [2] It is common ground between the parties that a review of the Tribunal's decision in this case involves a question of statutory interpretation. In particular, the statutory interpretation of what is known as Subdivision AK of the Migration Act 1958 (Cth) (the "Act"), and in particular, those parts of s.91 referred to in the Tribunal's conclusion, which are referred to in the Tribunal extract set out above. It is also common ground that this question of interpretation is one that has already, at least to a very large extent, been considered by this court in the case of SZOUY v Minister [2011] FMCA 347. That case was determined by Smith FM on 3 June 2011 and for reasons which are not relevant to these proceedings was not appealed. However, as Mr Karp says in the helpful written submissions he provided to this court in relation to this case, the decision of Smith FM was "both careful and considered". [3] At the commencement of the proceedings today, and in response to a question from me, I was informed that there is another case raising the same issues due to be heard before Cameron FM within a few days. It appeared to me that in those circumstances, it might be appropriate that the issue be referred immediately to the Federal Court. Although Mr Karp tells me that there is an additional point in relation to this case that was not argued before Smith FM, it is, with respect to him, at most a gloss upon the arguments that his Honour considered, and bearing in mind the strictures requiring the court at this level to follow the decision of a fellow justice unless the decision of that single judge could be said to be plainly wrong; BHP Iron Ore Pty Limited & Anor v National Competition Council & Anor [2007] FCAFC 157 per Finkelstein J, and the dangers of a selection of differing judgments about the same principle that must arise where the matter is to be heard before me and then again before Cameron FM, I expressed the view that the case should be referred to the Federal Court for decision. 3 The power conferred on the Federal Magistrates Court to refer a matter to this Court is to be found in Part 5 of the Federal Magistrates Act 1999 (Cth). Within that Part, s 39 confers a discretionary power to transfer a proceeding in the Federal Magistrates Court to this Court. Section 40 confers a power to make "Rules of Court" with respect to the transfer of proceedings. 4 Just as the Federal Magistrates Act confers power upon a Federal Magistrate to refer a proceeding to this Court, s 32AB of the Federal Court of Australia Act 1976 (Cth) confers a like power on this Court to transfer a proceeding to the Federal Magistrates Court. Section 32AB(2)(b) provides that this Court may exercise that power "on its own initiative". 5 The factors to be taken into account when exercising the discretion conferred by s 32AB(1) are regulated by s 32AB(3), (4) and (6). 6 Section 32AB(3) and (4) provide for the making of "Rules of Court" which "may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Magistrates Court …". Order 82 r 7 of the Federal Court Rules previously set forth the factors to be taken into account. Those Rules, however, have been repealed and the factors now to be taken into account are to be found in Rule 27.12 of the Federal Court Rules 2011. That rule relevantly provides as follows: Factors to be taken into account (1) … (2) For a proceeding, the parties must address the matters mentioned in section 32AB(6) of the Act. (3) For an appeal under the AAT Act or a proceeding, the parties should address the following: (a) whether the appeal or proceeding is likely to involve questions of general importance; (b) whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred; (c) whether an appeal or proceeding would be determined more quickly if transferred; (d) the wishes of the parties. The term "proceeding" is defined in the Dictionary to the Federal Court Rules 2011 by reference to the definition in s 4 of the Federal Court of Australia Act 1976 (Cth). 7 Section 32AB(6) provides as follows: In deciding whether to transfer a proceeding to the Federal Magistrates Court 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 Magistrates Court; and (c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. 8 Rule 27.12(3) employs much the same language as was previously employed in the now repealed Order 82 r 7. The transition to the new Rules effects no difference in either the manner in which the discretion conferred by s 32AB(1) is to be exercised or the factors that are to be taken into account. 9 With respect to the decision of the Federal Magistrate that the proceeding should be referred to this Court, it is concluded both that it was not open to the Federal Magistrate to make that order for such reasons as he did give and that the proceeding should be remitted to the Federal Magistrates Court for determination by that Court. 10 It was presumably in exercise of the power conferred by s 39 of the Federal Magistrates Act that the Federal Magistrate referred the proceeding to this Court. The exercise of that discretionary power by the Federal Magistrate, however, to the facts before him is indeed curious. On such limited reasons as were provided, there was said to be another decision of a Federal Magistrate which was on point: SZOUY v Minister for Immigration and Citizenship [2011] FMCA 347. There had been no appeal from that other decision. That decision, like the present, concerned the operation of Subdivision AK of Part 2 Division 3 of the Migration Act 1958 (Cth) in respect to persons coming from North Korea and who claimed refugee status. 11 There was, however, no suggestion in the reasons for decision of the Federal Magistrate that that other decision had been wrongly decided. Indeed, there seems to have been acceptance of the submissions being advanced on behalf of the Applicant that that other decision was "both careful and considered". In the absence of further explanation, the duty of the Federal Magistrate was to apply that other decision - unless he considered it appropriate to depart from that decision. It is not the function of a Federal Magistrate to refer a proceeding to this Court for unexplained reasons or to refer a proceeding to this Court rather than to apply another decision of the Federal Magistrates Court which is accepted to have been a "careful and considered" decision. The fact that there may have been "another case raising the same issues" due to be heard by another Federal Magistrate does not alter the conclusion to be reached. No particular difficulty was identified by the Federal Magistrate arising in respect to any factual, procedural or legal complexity such as may have warranted a transfer of the proceeding to this Court. If there was an "additional point" in the present proceeding, in addition to that previously resolved, the course which should have been pursued was for the Federal Magistrate to resolve that "additional point". If there was an appeal from that decision of the Federal Magistrate, that appeal would be resolved. A course not open to the Federal Magistrate was to refer the decision the subject of the present proceeding to this Court. The Federal Magistrate should have resolved the application which was then pending before him. 12 However curious the decision may be, the fact nevertheless remains that the Federal Magistrate has referred the proceeding to this Court. 13 Notwithstanding that decision, it is respectfully concluded that the proceeding should be sent back to the Federal Magistrates Court. 14 No course should be lightly pursued of transferring a proceeding in this Court back to the Federal Magistrates Court in circumstances where that very proceeding has been transferred to this Court. A course should not be encouraged whereby parties to litigation are being transferred from one Court to another - only to find themselves back where they started. But in those circumstances where a proceeding has been inappropriately transferred to this Court, this Court should have no hesitation in making its own order pursuant to s 32AB. 15 Even absent any consideration of the appropriateness of the order made by the Federal Magistrate, it is concluded that the discretion conferred by s 32AB(1) should be exercised to transfer the proceeding. The reasons for decision of the Federal Magistrate do not identify any question of general importance, and any question of general importance which may emerge should best be resolved by way of an appeal to this Court after all arguments in issue have been resolved and reasons provided. Considerations as to expense and convenience also support the proceeding first being resolved in the Federal Magistrates Court. It is noted that the parties to the present proceeding support the decision of the Federal Magistrate and wish for the proceeding to remain in this Court. 16 The present proceeding should, nevertheless, be remitted to the Federal Magistrates Court. Whether there may ultimately be any appeal from the decision of that Court is a matter best left to the parties themselves to resolve. In those cases where a proceeding has been properly instituted in the Federal Magistrates Court, it is the duty of that Court to hear and determine that proceeding. 17 When exercising the discretion conferred by s 32AB(1), and in considering whether a proceeding that has been transferred to this Court should be sent back to the Federal Magistrates Court, the reasons provided by the Federal Magistrate for his decision is a factor to be taken into account. Where no satisfactory or persuasive reason has been provided, this Court is deprived of a valuable source of assistance.