FEDERAL COURT OF AUSTRALIA Pangilinan v Secretary of the Department of Immigration and Border Protection [2013] FCA 1028 Citation: Pangilinan v Secretary of the Department of Immigration and Border Protection [2013] FCA 1028 Appeal from: Pangilinan and Secretary, Department of Immigration and Citizenship [2013] AATA 574 Parties: MARTINIANO PANGILINAN v SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 1907 of 2013 Judge: ROBERTSON J Date of judgment: 14 October 2013 Catchwords: PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal – transfer from Federal Court to Federal Circuit Court – order for transfer made on Court's initiative – Administrative Appeals Tribunal Act s 44AA - Federal Court Rules r 27.12 – mandatory and discretionary considerations Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44AA Federal Court Rules 2011 (Cth) r 27.12 Date of hearing: 2 October 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person by telephone Solicitor for the First Respondent: Ms Louise Buchanan of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1907 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MARTINIANO PANGILINAN Applicant AND: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: ROBERTSON J DATE OF ORDER: 14 OCTOBER 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be transferred from the Federal Court of Australia to the Federal Circuit Court of Australia. AND THE COURT DIRECTS THAT: 1. A sealed copy of this order be filed by the first respondent in the proceedings pursuant to r 8.04 of the Federal Circuit Court Rules 2001. 2. The Registrar send to the proper officer of the Federal Circuit Court of Australia all documents filed and orders made in the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1907 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MARTINIANO PANGILINAN Applicant AND: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: ROBERTSON J DATE: 14 OCTOBER 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This proceeding was commenced in this Court by a document entitled notice of appeal filed on 13 September 2013. The application is in respect of a decision made by the Administrative Appeals Tribunal (the Tribunal) under the Freedom of Information Act 1982 (Cth). The first respondent filed on 26 September 2013 a notice of objection to competency on the ground that the notice of appeal does not identify any question of law, nor do the grounds as pleaded provide any basis for posing a question of law, in respect of the decision appealed from for this Court to determine. 2 The background to the matter as described by the Tribunal is: 1. Martiniano Pangilinan is a citizen of the Philippines. He arrived in Australia on a one month visa in 1991. In 1993 he applied for a protection visa after having been taken into detention. His application for refugee status was refused. He was released from detention in consideration of a bond and his having joined a class action. After the class action was dismissed by the Federal Court Mr Pangilinan applied for an entry permit. This was ultimately unsuccessful. He finally left Australia in 2004. Two proceedings sought to be brought by Mr Pangilinan in the Federal Magistrates Court and the Federal Court in 2005 were dismissed. 2. Mr Pangilinan firmly believes he was granted refugee status in 1993 and that the payment of a $3000 bond for his release from detention, the undertaking given by him, and letters to him from his solicitors documenting this are inventions designed to mislead. 3. Mr Pangilinan is convinced that the Federal Court granted him refugee status in 1993. His purpose is to uncover records of this. 3 The issues for the Tribunal to consider were: (i) Whether the Secretary had taken all reasonable steps to find documents falling within the scope of Mr Pangilinan's request; and (ii) Whether the Secretary correctly refused Mr Pangilinan's access to documents over which exceptions were applied. 4 The decision of the Tribunal was in the following terms: The decision under review is varied to reflect the release at the hearing by the Respondent to the Applicant of documents over which the Respondent had previously claimed exemptions. The Tribunal affirms that part of the decision under review that refuses access to file number A93036014 which has been destroyed and that part of the decision that refuses access to the following documents on the basis of claimed exemptions 5 At the first directions hearing in this Court on 2 October 2013 I indicated to the parties that I was considering transferring the appeal, of my own initiative, to the Federal Circuit Court. The applicant is self-represented. 6 Section 44AA(1) of the AAT Act, relevantly states that: If an appeal under subsection 44(1) … is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Circuit Court of Australia. 7 Here, because the decision was given by a senior member, s 44AA(2) does not apply. 8 By s 44AA(3) the Federal Court may transfer an appeal under s 44AA(1) on the application of a party to the appeal or on its own initiative. 9 Section 44AA(4) provides for Rules of Court making provision in relation to transfers of appeals to the Federal Circuit Court under s 44AA(1). 10 Section 44AA(5) provides for Rules of Court setting out factors that are to be taken into account by the Federal Court in deciding whether to transfer appeals to the Federal Circuit Court under s 44AA(1). 11 Section 44AA(7) of the AAT Act provides that in deciding whether to transfer a proceeding to the Federal Circuit Court, the Federal Court must have regard to: (a) any Rules of Court made for the purposes of subsection (5); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and (c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and (d) the interests of the administration of justice. These are therefore mandatory considerations. 12 Rule 27.12 of the Federal Court Rules 2011 (Cth) makes the provision referred to in s 44AA(5) of the AAT Act. Rule 27.12(3) prescribes factors that, in effect, the Court may take into account, in addition to the factors to which the Court or a Judge is required to have regard under s 44AA(7) of the AAT Act. 13 Those additional but, in terms, non-mandatory factors are: (a) whether the appeal … is likely to involve questions of general importance; (b) whether it would be less expensive and more convenient to the parties if the appeal… were transferred; (c) whether an appeal… would be determined more quickly if transferred; (d) the wishes of the parties. 14 I asked the parties whether they had any wishes in respect of a proposed order to transfer the matter of the Court's own initiative from the Federal Court to the Federal Circuit Court. At the directions hearing the applicant said he did not mind in which court his appeal was heard. The first respondent's legal representative said that she did not have instructions. I directed that the first respondent notify the applicant and the Court of the first respondent's wishes by 8 October 2013. As so notified by email, the first respondent did not oppose the transfer if the Court was minded to so order. However there was then an email from the applicant stating "i receive this email letter from ms louise buchanan of first respondent i express my wishes to ms louise buchanan that it would be more appropriate if the matter would remain in the federal court of australia." I take these wishes into account. 15 Having regard to these mandatory and discretionary considerations and in particular to my conclusions that: 1. the appeal does not involve questions of general importance; 2. if the appeal is transferred, it is, in my opinion, likely to be heard and determined at less cost to the applicant and more convenience to the parties than if the appeal is not transferred; 3. the wishes of the parties, as outlined above; 4. my opinion that the appeal is likely to be heard and determined earlier in the Federal Circuit Court; I order that the appeal be transferred from the Federal Court of Australia to the Federal Circuit Court. 16 I make no order as to the costs of the appeal in this Court. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 14 October 2013