Case: Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465
Outcome: referred to
In response to this, counsel for the Minister relied on the decision of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465. In that case, Besanko J decided that the question of "reasonable practicability" under s 198(6) , which question may include an assessment of the relevant non-citizen's physical and/or mental health, is not a jurisdictional fact which conditions the existence of the duty in that provision of the Act . The difficulty for the applicant in that case was that the jurisdictional error was not pleaded in the Statement of Claim because the case proceeded on the assumption that it was sufficient to allege that it was not reasonably practicable, as a matter of fact, to remove the applicant from Australia. His Honour did not consider that was a sufficient ground. On this point, Mr Asaad submits that the present case gives rise to issues different to those canvassed by Besanko J, and that Beyazkilinc [2006] FCA 1368 ; 155 FCR 465 is therefore not determinative in this application. 16 As I have decided to transfer the proceeding to the Federal Magistrates Court (see below at [19]-[22]), it is not necessary for me to make a final determination in this case as to whether this Court has jurisdiction to hear and determine Mr Asaad's application. I shall, however, make some brief comments on the submissions advanced before me. 17 As noted above at [10], s 5E of the Act provides that a purported privative clause decision is a decision purportedly made, proposed to be made, or required to be made under the Act , which would be a privative clause decision except for the fact that there was a failure to exercise jurisdiction or an excess of jurisdiction when the decision was made. The word "decision", as it is defined in s 474(3) , includes a determination as to whether it is reasonably practicable to remove a person pursuant to s 198(6). Moreover, in light of s 5E of the Act , if the decision under s 198(6) is affected by error (whether by not determining a jurisdictional fact or by some other means), it still "purports" to be a decision and thus is properly described as a "purported privative clause decision". In other words, a decision of administrative character for the purposes of s 474(2) of the Act will have been made, or at least purportedly made. In this case, the decision of an administrative character is the decision that it is reasonably practicable to remove Mr Asaad from Australia. The fact that this decision is impugned as erroneous does not enliven jurisdiction in this Court which is otherwise excluded by s 476A. 18 On the basis of this reasoning, it seems reasonably clear to me that this Court does not have jurisdiction to hear and determine the application. However, even if it were to be eventually found that this Court did have jurisdiction to hear the matter, I am of the view that the convenient and expedient course is to transfer the matter to the Federal Magistrates Court, which undoubtedly has jurisdiction. This is preferable because it shall avoid the risk, which may arise if I proceed to determine the issues raised, of involving the parties in future disputes as to the jurisdiction of this Court. It is appropriate not to address the jurisdictional question, at least insofar as the present application before this Court is concerned, as this is a matter for the Federal Magistrate. It is also not necessary to consider whether the reasonable practicability of a non-citizen's removal is a jurisdictional fact in s 198(6) of the Act . 19 This Court has power under s 32AB of the Federal Court of Australia Act 1976 (Cth) and O 82 r 7 of the Federal Court Rules to transfer a proceeding from this Court to the Federal Magistrates Court on the application of a party or on its own initiative. In deciding whether to transfer a proceeding to the Federal Magistrates Court, this Court is directed by O 82 r 7 to several factors, which it may take into account. These include: whether the proceeding is likely to involve questions of general importance such that it would be desirable for there to be a decision of this Court; whether, if transferred, the proceeding is likely to be determined at less cost and more convenience to the parties; whether, if transferred, the proceeding is likely to be heard and determined earlier; and whether the parties desire the transfer. 20 In this case, I am satisfied that the above considerations, on balance, favour transferring the proceeding to the Federal Magistrates Court, thereby avoiding unnecessary delay and expense resulting from disputes concerning jurisdiction. 21 I note that during argument as to whether the Court ought to transfer the matter to the Federal Magistrates Court, a question arose as to whether this Court has power to remit a "proceeding" to the Federal Magistrates Court where this Court does not have jurisdiction due to the absence of a federal "matter". In my view, the expression "proceeding" in s 32AB of the Federal Court of Australia Act 1976 (Cth) is distinct from the expression "matter" (as used in s 39B(1) of the Judiciary Act 1903 (Cth)) and is sufficiently wide to encompass the present dispute between the parties. I therefore consider that the Court has power to, and should, transfer the proceeding notwithstanding any doubt which may exist as to its jurisdiction to hear and determine the application. 22 Accordingly, I order that this proceeding be transferred to the Federal Magistrates Court. The costs to date shall be costs in the cause. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 14 July 2008 Counsel for the Applicant: Mr S. Prince Solicitor for the Applicant: SBA Lawyers Counsel for the Respondent: Mr G. Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 June 2008 Date of Judgment: 14 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1039.html