WABG v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 These reasons are concerned with the question whether this application should be transferred to the Federal Magistrates Court. The application is for review of a decision of the Refugee Review Tribunal confirming a decision of the respondent not to grant the applicant a protection visa. It was filed on 26 October 2001 and thus falls to be decided under the Migration Act as amended substantially with effect on and from 2 October 2001. From that date the subject matter of the application has been within the jurisdiction of the Federal Magistrates Court. 2 On 5 February 2002 I caused identical letters to be sent to the applicant (who is not legally represented) and to the respondent's solicitor advising them that I was considering whether to make an order, on my own motion, to transfer this application to the Federal Magistrates Court under Order 82 rule 6(1) of the Federal Court Rules. 3 The parties were invited to file written submissions on that matter within 14 days of the date of the letter. The applicant has not filed any submissions. The respondent has forwarded a short submission in the following terms: "As the applicant is currently in detention, the matter has already been given a hearing date (19 March 2002) and involves a review of a privative clause decision (which may involve complex issues), we are instructed to ask that the matter remain in the Federal Court."

the legislative framework 4 Section 32AB(1) of the Federal Court Act 1976 (Cth) provides that if a proceeding is pending in this Court, the Court may, by order, transfer it to the Federal Magistrates Court. Section 32AB(2) provides that the Court may make such an order on the application of a party to the proceeding or on its own initiative. 5 Section 32AB(6) provides as follows: "32AB(6) [Factors that must be taken into account] 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." 6 Order 82 rules 6(1) and (7) of the Federal Court Rules relevantly provide as follows: "RULE 6 TRANSFER ON COURT'S OWN MOTION 6(1) Subject to the relevant Act, the Court or a Judge may at any time on the Court's or the Judge's own motion transfer a proceeding … to the Federal Magistrates Court. RULE 7 FACTORS TO BE CONSIDERED 7 In deciding whether to transfer a proceeding … to the Federal Magistrates Court, the Court or a Judge must take into account, in addition to the factors mentioned in subsection 32AB(6) of the Act in relation to a proceeding, … the following factors: (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 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 … is likely to be heard and determined earlier in the Federal Magistrates Court; (d) the wishes of the parties."