FEDERAL COURT OF AUSTRALIA

Hong Bo Su v Minister for Immigration & Multicultural &

Indigenous Affairs [2003] FCA 1355

HONG BO SU v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AND INDIGENOUS AFFAIRS

W114 of 2003 

CARR J

25 NOVEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.         The application be transferred to the Federal Magistrates Court.

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

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 made under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision made, on 28 April 2003, by a delegate of the respondent to cancel the applicant’s UC Temp. Business Sub Class 456 visa shortly after applicant’s arrival at Perth airport. 

2                     The application was filed in this Court on 26 May 2003.  The first directions hearing took place on 24 June 2003.  On that occasion I canvassed with the parties the question whether it was appropriate for the application to be transferred to the Federal Magistrates Court.  However, the parties had agreed that the directions hearing be adjourned.  As Mr L Boccabella, then counsel for the applicant explained, the applicant had applied for another visa which, if granted, might mean that the applicant would no longer challenge the cancellation of his visa.  I adjourned the matter, by consent, to 9 September 2003.  I noted in the orders then made that at the adjourned directions hearing I would further consider whether the application should be transferred to the Federal Magistrates Court.  I gave either party leave to file and serve submissions on that matter by 2 September 2003.  Neither party did so. 

3                     The further directions hearing took place on 9 September 2003.  By consent, it was adjourned to 31 October 2003.  On 31 October 2003 I made orders that each party on or before 14 November 2003 send a letter to the Court setting out their submissions on the question whether this application should be transferred to the Federal Magistrates Court. 

4                     The applicant has filed and served a submission which asserts that this application is likely to involve questions of general importance.  The respondent, in short submissions, states that she does not consider that this matter raises any questions of general importance.  I shall return to that matter below. 

5                     In relation to the other matters which, by s 32AB of the Federal Court of Australia Act 1976 (Cth) and Order 82 rule 7 of the Federal Court Rules 1976 this Court is obliged to consider, the applicant’s position is as follows: 

·          the application raises legal issues of substantial complexity and importance which will require the assistance of senior counsel whether or not it is heard in this Court or the Federal Magistrates Court.  Accordingly, there would be minimal costs saving if the application were transferred to that Court;

·          the applicant accepts that there may be some delay in having the matter heard in this Court, compared to it being heard in the Federal Magistrates Court;

·          the applicant also accepts that the resources of the Federal Magistrates Court are sufficient to hear and determine the application; 

·          the applicant understands that there are currently no proceedings in respect of an associated matter in the Federal Magistrates Court; 

·          the applicant wishes the proceedings to be heard before this Court; and

·          as to the interests of the administration of justice, this application deals with matters of technical complexity, significance to him and many other visa holders in Australia and of general legal significance.  The applicant contends that the Court will be required not only to construe the meaning and operation of important provisions in the Migration Act 1958 (Cth) (“the Act”),including s 474, but also to clarify the operation of the principles of natural justice in the context of the Act.  The applicant suggests that these are matters which would be more properly dealt with by this Court rather than the Federal Magistrates Court.

6                     In relation to the matter being one of general importance, the applicant submits as follows.  He says that the grounds of his application include, among other things, a claim that the respondent’s delegate failed to comply with the requirements of ss 119-121 of the Act, in that he was not given a reasonable opportunity to respond to the notification of intention to cancel his visa. 

7                     The applicant contends that recent statutory reform, [a reference to the Migration Amendment (Procedural Fairness) Act 2002 (Cth) (“the Procedural Fairness Act”)] and the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 have created uncertainty as to the continued application and existence of the principles of natural justice in the context of the Act.  The applicant maintains that this application is a matter of general importance because it will require the Court to determine how and to what extent the principles of natural justice apply in relation to ss 119-121 of the Act.  Those provisions are said to involve rights of crucial importance to visa holders entering and residing in Australia.  They ensure that delegates of the respondent act fairly when cancelling a person’s visa by requiring them to notify a visa holder of their proposed decision to cancel, invite that person to comment, and have regard to that person’s comments, when making their decision. 

my reasoning

8                     In my view, this application is not likely to involve questions of general importance.  In relation to the natural justice point, the main question will be whether the decision of the respondent’s delegate was “made under” the Act.  In my opinion, that question will, in turn, depend very much upon the facts as found. 

9                     In relation to the interests of the administration of justice, I do not accept that this application is likely to “clarify the operation of the principles of natural justice in the context of the Migration Act” as the applicant submits.  That is because, in my view, the case will (as I have just mentioned) turn on the facts of this particular matter. 

10                  As I have indicated in other decisions, I consider that one aspect of the administration of justice is the efficiency of allocation of resources: see, for example, WABG v Minister for Immigration and Multicultural Affairs [2002] FCA 138. 

11                  I infer from the submissions made by the applicant at the directions hearing on 24 June 2003 and in his written submissions that the application is of considerable importance to him. 

12                  In those circumstances, I think that it is likely that if the applicant is unsuccessful at first instance he will appeal.  That will mean that, if the matter remains in this Court, four judges will review the documents and the Tribunal’s reasons and three of those judges will also review the decision of the judge at first instance. 

13                  Alternatively, if the matter is transferred to and heard by the Federal Magistrates Court and then there were an appeal to this Court, there is a prospect of less consumption of judicial resources.  It may well be that an appeal would be heard by a single judge.  If so, a transfer of this application to the Federal Magistrates Court would give rise to a considerable saving of judicial resources, being a vital part of the administration of justice.  At the very least, there is the potential for such saving. 

14                  After weighing the various matters which the Court is obliged to take into account, I consider that it is appropriate that the matter be transferred to the Federal Magistrates Court.  There will be an order to that effect.

Associate:

Dated:              25 November 2003