Federal Magistrates Court Amendment Rules 2005 (No. 1)1 Select Legislative Instrument 2005 No. 263
We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999. Dated 6 September 2005 PASCOE CFM BAUMANN FM BENNETT FM BREWSTER FM BROWN FM COAKES FM COKER FM CONNOLLY FM DONALD FM DRIVER FM EMMETT FM HARTNETT FM JARRETT FM LINDSAY FM LLOYD-JONES FM MOWBRAY FM NICHOLLS FM O’DWYER FM PHIPPS FM RAPHAEL FM RIETHMULLER FM RIMMER FM ROBERTS FM RYAN FM SCARLETT FM SMITH FM Federal Magistrates JOHN MATHIESON
Chief Executive Officer
1 Name of Rules These Rules are the Federal Magistrates Court Amendment Rules 2005 (No. 1). 2 Commencement These Rules commence on the commencement of Schedule 1 to the Migration Litigation Reform Act 2005. 3 Amendment of Federal Magistrates Court Rules 2001 Schedule 1 amends the Federal Magistrates Court Rules 2001.
Schedule 1 Amendments (rule 3) [1] Subparagraph 13.07 (1) (b) (ii) substitute (ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part. [2] Rule 13.10 substitute
13.10 Disposal by summary dismissal The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court. Note For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act. [3] Paragraph 21.10 (a) omit Schedule 1; and insert Part 1 of Schedule 1; and [4] Rule 21.16 omit Schedule 1. insert Part 1 of Schedule 1. [5] Before rule 42.01, in Part 42 insert Note See Part 44 in relation to jurisdiction under section 476 of the Migration Act 1958. [6] Before rule 43.01, in Part 43 insert Note See Part 44 in relation to jurisdiction under section 476 of the Migration Act 1958. [7] After Part 43 insert
Part 44 Proceedings under the Migration Act 1958
Division 44.1 Preliminary
44.01 Definitions for Part 44 In this Part: Migration Act means the Migration Act 1958. migration decision has the meaning given by subsection 5 (1) of the Migration Act.
44.02 Application of Part 44 (1) This Part applies to a proceeding for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision. (2) This Part applies to a matter, or part of a matter, remitted to the Court by the High Court under section 44 of the Judiciary Act 1903 and in accordance with section 476B of the Migration Act. (3) Subrule (2) is subject to any order of the High Court in the matter.
44.03 Application of Chapters 1 and 3 Chapters 1 and 3 apply, so far as they are relevant and not inconsistent with this Part, to a proceeding to which this Part applies.
Division 44.2 Matters commenced in the Court
44.04 Application of Division 44.2 This Division applies only to a matter commenced in the Court.
44.05 Application for order to show cause (1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the form of application under the Migration Act set out in Part 1 of Schedule 2. (2) An application must be supported by an affidavit including: (a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and (b) any document or other evidence the applicant seeks to rely on; and (c) if an extension of time is sought — the reasons for any delay and the reasons why an extension should be granted.
44.06 Response to application (1) Each respondent who intends to oppose an application must file and serve a response, including each ground on which the respondent opposes the application and details of each ground. (2) For subrule (1), the grounds on which a respondent may oppose an application include the following: (a) that the Court lacks jurisdiction to hear the application; (b) delay in seeking the remedy; (c) that there are, or have been, other judicial review proceedings in relation to the decision; (d) that the applicant has not complied with subsection 486D (1) of the Migration Act. Note Rules 4.03, 4.04 and 4.05 include requirements relating to responses.
Division 44.3 Matters remitted by the High Court
44.07 Application of Division 44.3 This Division applies only to a matter, or part of a matter, remitted to the Court by the High Court, subject to any direction of the High Court in the matter.
44.08 Filing of order of remittal (1) A sealed copy of the order of the High Court, remitting a matter, or part of a matter, to the Court must be filed in the registry named in the order of remittal. (2) In the absence of a specification of a registry of the Court in a matter or part of a matter in the order, the Chief Executive Officer may direct that the order be filed in a particular registry.
44.09 Service of notice and order (1) A Registrar must affix a notice to the High Court’s order and allot a serial number to the order as if the order was an application filed in the registry. (2) The notice must: (a) include the date for a first court date in the matter; and (b) include a note to the effect that before taking any step in the proceeding, a party, other than the applicant, must enter an appearance in the registry unless the party has already entered an appearance in the High Court; and (c) be in the form approved by the Chief Executive Officer. (3) A Registrar must affix the stamp of the Court to a sufficient number of copies of the notice for service in accordance with subrule (4). (4) A Registrar must cause sealed copies of the notice, together with copies of the High Court’s order, to be served on each party to the proceeding in the High Court and on any other person whom the Court or a Registrar directs should be so served. (5) Service may be effected by delivery to a party’s address for service in the proceeding before the High Court.
Division 44.4 General
44.10 Stay of proceedings The Court may, at any time, grant, discharge or vary a stay of the proceedings to which an application for an order to show cause relates.
44.11 First court date Without limiting rule 10.01, at the first court date for an application for an order to show cause, the Court or a Registrar may give orders or directions for any of the following: (a) an immediate hearing under rule 44.12; (b) a future listing for a hearing under rule 44.12; (c) dispensing with a hearing under rule 44.12 and listing the matter for final hearing on the grounds set out in the application; (d) a stay or interim order; (e) an extension of time for the application; (f) an amendment of the application; (g) the provision of particulars, or further and better particulars, of a ground in an application or response; (h) the filing of further affidavits by the applicant; (i) the filing by a respondent or other person of a relevant document or other evidence; (j) the filing of affidavits by a respondent.
44.12 Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed — dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed — adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.
44.13 Relief and grounds (1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application. Note Rule 7.01 provides for the amendment of applications. (2) At a final hearing following a hearing under rule 44.12, the applicant is confined to the grounds specified in the Court’s order to show cause.
44.14 Writs A writ of a particular kind issued by the Court under this Part: (a) must be substantially in the form of a writ of that kind issued under the High Court Rules 2004; and (b) must be served and complied with in accordance with those Rules.
44.15 Costs (1) The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with item 1 of Part 2 of Schedule 1. (2) Unless the Court otherwise orders, an applicant who files a notice of discontinuance of an application for an order to show cause is liable to pay a respondent’s costs in accordance with item 2 of Part 2 of Schedule 1. [8] Schedule 1, heading substitute
Schedule 1 Costs (rules 21.10, 21.16 and 44.15) Note The amounts in this Schedule include GST.
Part 1 Family law and general federal law proceedings [9] Schedule 1, at the end insert
Part 2 Migration proceedings
1 Proceedings that are concluded For subrule 44.15 (1), the costs are: (a) if the proceeding is concluded at or before the first court date for the proceeding — $1 000; or (b) if the proceeding is concluded after the first court date for the proceeding and at or before the hearing under rule 44.12 or other interlocutory hearing — $2 500; or (c) if the proceeding is concluded at a final hearing — $5 000.
2 Proceedings that are discontinued For subrule 44.15 (2), the costs are: (a) if the notice of discontinuance is filed and served at least 14 days before the first court date for the proceeding — $500; or (b) if the notice of discontinuance is filed and served within the period beginning 14 days before the first court date for the proceeding and ending 15 days before the hearing under rule 44.12 or other interlocutory hearing — $1 250; or (c) if the notice of discontinuance is filed and served within the period beginning 14 days before the hearing under rule 44.12 or other interlocutory hearing and ending 15 days before the final hearing — $2 500; or (d) in any other case — $3 500. [10] Schedule 2, Part 1, after the form of Application for Review insert
Application under Migration Act (rule 44.05) IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA AT FILE NO: Applicant(s) Pseudonym(s) for Applicant(s) [Registry use only] MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL [or] MIGRATION REVIEW TRIBUNAL [delete as applicable] Second Respondent APPLICATION UNDER MIGRATION ACT (Rule 44.05)
Address of applicant* Address for receiving mail: [must be completed] Home address: [must be completed] Phone: [must be completed] Facsimile: Email: NOTE: All correspondence concerning the application will be sent to the applicant’s mailing address. If this address changes, the applicant must, within 7 days after the change, file a notice of the change and serve a copy on the respondents. * This information must appear at the foot of the first page of the application.
Application for an order to show cause The applicant applies for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 in respect of the following decision. Decision details If a Tribunal made the decision, name of the Tribunal: If the Minister or a delegate made the decision, name of the decision-maker and his or her office: Date of the decision: Date when notification of the decision was received by the applicant: Section of the Migration Act 1958 under which the decision was made: Grounds of Application [Each ground on which the relief is sought and the particulars of each ground must be stated. See NOTES below.] The grounds of the Application are: 1. 2. 3. … Orders sought by Applicant [Identify each order sought by way of final relief] 1. 2. 3. … Application for extension of time Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958? Yes ? No ? NOTE: An extension of time is required if the application is not made within 28 days of the actual (as opposed to deemed) notification of decision – see section 477 of the Migration Act 1958. If it is required, the applicant must file an affidavit explaining the delay and the reasons why an extension of time should be granted. Application for interlocutory relief [This section must be completed if the applicant wishes to claim interlocutory relief.] The applicant claims the following interlocutory relief: 1. 2. 3. … Other Court Proceedings [This section must be completed if the applicant has made a previous application or applications to a court to review the decision – see section 486D of the Migration Act 1958.] Person or persons who made each previous application: Court or courts to which each application was made: Commencement date of each previous application or applications: File number of each application: Outcome of each application: Language spoken Does the applicant require an interpreter? Yes ? No ? What language does the applicant speak: First Court Date Time and date for hearing: Place: Service of Application The application must be served on each respondent within 7 days by delivering it to the Department of Immigration and Multicultural and Indigenous Affairs at the address shown below. [The address will be inserted by the Registry] Date: [signature of applicant, or as the case may be, the applicant’s solicitor] Lawyer’s Certification [see section 486I of the Migration Act 1958] I, [name], the lawyer filing this document commencing migration litigation, certify that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success. [Signature of the lawyer filing application] Date: NOTES CONCERNING GROUNDS OF APPLICATION 1 Each ground must identify a jurisdictional error by reason of which it is claimed that the decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474 (2) of the Migration Act 1958. 2 The particulars of each ground must be sufficient to allow the Court to understand how each ground relates to the decision, the reasons for decision, the circumstances of the decision, or the procedures concerned with the making of the decision, as the case may be. 3 The applicant must file one or more affidavits attaching a copy of the decision and any statement of reasons, and including any other evidence relied upon. 4 If the applicant is unable to raise an arguable case for the relief claimed, the application may be dismissed under rule 44.12 without a final hearing. NOTICE TO THE RESPONDENTS Appearance and Response Before any attendance at Court, each respondent must file an appearance in the Registry. Each respondent who intends to contest the application must file a response within 14 days of service of the application. NOTE: A response must specify each ground of opposition with particulars, including grounds of objection to competency, previous court proceedings, delay, etc. Any evidence relied upon must be detailed in or attached to an affidavit.
Note 1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.
