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[2002] FCA 138
Federal Court of Australia
2001-10-02
Carr J
Original judgment source is linked above.
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."
my reasoning 7 I turn first to the factors referred to in Order 82 rule 7. 8 In my view, the application is likely to involve questions of general importance in the sense that the construction and application of the privative clause in s 476(1) of the Act is likely to be involved. However, there are many cases currently pending in the Federal Court where the same questions arise and indeed there is a growing number of matters in which decisions have already been given on these questions. My assessment is that some of those decided cases are likely to find their way to a Full Court or possibly the High Court. This case is most unlikely to be the only vehicle for resolving any question of general importance. Accordingly, I give very little weight to this factor. 9 If the proceeding is transferred to the Federal Magistrates Court I consider that it is likely to be heard and determined at slightly less cost. There is likely to be a degree of inconvenience to the respondent in changing arrangements with counsel. The question whether the proceeding is likely to be heard and determined earlier in the Federal Magistrates Court is listed in Rule 7(c) as a separate factor, so I will not consider the timing of the hearing under the heading of convenience. In this application I think that the factors of less cost on the one hand and inconvenience on the other cancel themselves out. 10 I have ascertained from the Federal Magistrates Court that there are good prospects of the application being heard during the week commencing 8 April 2002, that a special fixture might be arranged and that two new federal magistrates have recently been appointed to the Federal Magistrates Court. Although there is likely to be some delay in the hearing of the case, I consider that the prospects of it being heard and determined earlier in the Federal Magistrates Court than in this Court (bearing in mind my other commitments) are reasonably good. 11 The applicant has given no indication of his preference. The respondent's wishes, so far as the significance of the hearing date having been allocated have already been considered above. In so far as the respondent's wishes turn on the fact that the matter involves review of a privative clause decision and may involve complex issues, I take that into account but do not give it very much weight. In my view it is inevitable that over time the Federal Magistrates Court will have to consider whether to review privative clause decisions. 12 I now turn to the remaining factors set out in s 32AB(6). 13 There are no proceedings in respect of an associated matter pending in the Federal Magistrates Court. 14 The Registrar of the Federal Magistrates Court has indicated to me that the resources of that court are sufficient to hear and determine this and other similar proceedings. 15 No submissions have been made on the factor of the interests of the administration of justice. Subject to the factor which I mention below, in my view, the interests of the administration of justice will be equally well served whether this application be heard in this Court or in the Federal Magistrates Court. 16 However, one aspect of the administration of justice is the efficiency of the allocation of resources. In many matters such as this there is a familiar pattern of a trial at first instance followed, virtually automatically, by an appeal to the Full Court of the Federal Court. This means that four judges of this Court review the documents and the Tribunal's reasons, and three of those judges will also review the decision of the judge at first instance. 17 Alternatively, if this matter is transferred to and heard by the Federal Magistrates Court and then there were an appeal to this Court, it is likely that there will be less consumption of judicial resources. There are provisions whereby the appellate jurisdiction of this Court in such circumstances may be exercised by a single judge. Any further appeal would be by way of application to the High Court of Australia for special leave to appeal. The likelihood is, in my view, (given the pattern of these cases) that a transfer of this application will give rise to a considerable saving of judicial resources, being a vital part of the administration of justice. At the very least there will be the potential for such saving. In my view, the administration of justice includes not only the giving of a fair hearing to the parties in this matter and a right of appeal, but also the expeditious hearing and determination of other matters awaiting hearing in this Court. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: The matter was dealt with on the papers
WABG
Minister for Immigration & Multicultural Affairs