FEDERAL COURT OF AUSTRALIA

NADU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 571

MIGRATION – transfer to the Federal Magistrates Court

Federal Court of Australia Act 1976 (Cth)  subs 32AB(6)

Federal Court Rules  O 82 rr 6, 7

NADU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 165 of 2002

ALLSOP J

2 MAY 2002

SYDNEY

THE COURT ORDERS THAT:

1.         the matter be transferred to the Federal Magistrates Court; and

2.         costs of today and costs hitherto be costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter I have raised with the parties, through the Registrar, the question of whether it is appropriate to transfer the proceedings to the Federal Magistrates Court (the Magistrates Court).  The application is for review of a decision of the Refugee Review Tribunal (the Tribunal) and, having been filed after 2 October 2001, it is thus the subject matter of the jurisdiction of the Magistrates Court.

2                     The Registrar requested the parties to consider their position as to the matter being heard in the first instance by the Magistrates Court.  The respondent Minister, through his representative, has considered that matter and Mr Markus, who appears for the Minister, has indicated the Minister's view that the matter is suitable for referral to the Magistrates Court.

3                     The view expressed by Mr Markus, because of his experience and habitual frankness with the Court, is one upon which I place weight.  His view accords with my reading of the Tribunal’s reasons and the terms of the application and affidavit; that is, there does not appear to be an issue beyond what I may refer to, without any disrespect to any available argument, as well known issues, not throwing up any extraordinary and unusual point.  That is not to say that for the applicant they are not real and important points.  The papers, application and affidavit throw up important complaints requiring the Court to examine the position.  However, within the terms of Order 82 rule 7 of the Federal Court Rules, the proceedings are not, in my view, likely to involve questions of general importance to the public.  Of course, the matter will involve matters of importance to the particular litigant.

4                     I have asked the applicant what his views are about transfer.  (The applicant’s name must be kept anonymous in publication of these proceedings because of s 91X of the Migration Act 1958 (Cth)).  He has indicated that he would prefer the matter to remain in this Court, but I think it fair to say that this is because he has filed the proceedings here, he has seen this Court and is content with what he has seen in this Court as a court to hear his case.

5                     The applicant has not previously appeared before a Federal Magistrate.  I have explained to him that the Magistrates, though they are called Magistrates, are in fact federal judges, albeit at a lower level in the hierarchy.  I have also explained to him that the extent of the Magistrates jurisdiction and power is exactly the same as the extent of jurisdiction and power available to the Federal Court on review of his case.

6                     I have also explained to the applicant that there lies an appeal from the Magistrates Court to this Court and that that appeal, which may be heard by one or three judges, depending upon any importance of the matters, will deal with the matter in the appellate jurisdiction of this Court on appeal from the Magistrates Court.

7                     I am satisfied from my review of the file that there would be no injustice whatsoever to the applicant, in terms of dealing with the issues in the case, for the matter to be heard at first instance by the Magistrates Court.  In considering the matter of transfer, I have taken into account all of the matters referred to in subs 32AB(6) of the Federal Court of Australia Act 1976 (Cth) and Order 82 rules 6 and 7 of the Federal Court Rules. 

8                     One of the matters which I have had regard to, and which is a matter of some weight and concern to me, is the likely timing of a hearing in this matter.  I have, as all judges of this Court do, a docket to manage and I am not comfortably in a position to give hearing dates in this matter until well into the final quarter of the year.  The Magistrates Court, on inquiry, will be able to deal with this matter more rapidly than that.  As I would understand it, there are real prospects of a June or July hearing date in the Magistrates Court.

9                     The applicant is not in custody.  I am mindful to keep some flexibility in my docket to enable me to receive and hear cases promptly where applicants are in detention.  Given this matter, my review of the nature of the issues and comforted as I am in that respect by the expression of Mr Markus' view, upon which I place great weight, I am of the view that it is an appropriate matter for the hearing at first instance to be heard by the Magistrates Court. 

10                  In those circumstances, I order that the matter be transferred to the Magistrates Court.  As to the question of costs, I order that costs of today and costs hitherto be costs in the cause.

Associate:

Dated:              8 May 2002