Re Zhang De Yong v Minister of Immigration Local Government and Ethnic Affairs [1993] FCA 33 (15 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: ZHANG DE YONG
And: MINISTER OF IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G214 of 1992
FED No. 68
Number of pages - 7
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - representative proceedings - dismissal of motion to strike out application - direction to amend application - whether order dismissing motion concluded fundamental issues - whether case appropriate for leave to appeal against decision - motion for leave adjourned to trial judge.

Federal Court of Australia Act 1976 s.33C

Judiciary Act 1903 s.39B

HEARING

PERTH, 12 February 1993
15:2:1993

Counsel for the Applicant : Dr. J. Cameron

Solicitors for the Applicant : Patrick J. Gethin

Counsel for the Respondent : Mr S. Owen-Conway QC and Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The Court orders that:
1. The motion is adjourned to a date to be fixed before Lee J.

Costs of the motion to date reserved.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
REASONS FOR JUDGMENT
ON MOTION FOR LEAVE TO APPEAL

DECISION

FRENCH J. Zhang de Yong is a citizen of the Peoples Republic of China who came to Australia as a stow-a-way on 27 June 1990. Upon arriving in this country he applied for refugee status. On 11 December 1992 Mr Ron Gent, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs wrote to Mr Zhang who was then detained at the Department's detention centre at Perth Airport. In that letter, Mr Zhang was advised that Mr Gent had determined that he was not a refugee within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the status of refugees. He was informed that the Compliance Section of the Department of Immigration Local Government and Ethnic Affairs would contact him to discuss arrangements for his departure from Australia.

2. On 23 December 1992, an application was filed in this Court by Mr Zhang seeking an order of review of the decision under the Administrative Decisions (Judicial Review) Act 1977. He brought the application as a representative proceeding under s.33C of the Federal Court of Australia Act. In bringing the proceeding Mr Zhang purported to represent a group defined in the application in the following way:

"The group members to whom this proceeding relates are
persons present in Australia who have sought
recognition of their status as refugees under the
United Nations Convention on Refugees and Protocol in
accordance with the provisions of the Migration Act
1958 (Commonwealth) and whose applications have been
considered or are presently being considered by the
Respondent's delegate for the purpose of making a
recommendation on refugee status to the Respondent."

3. Grounds of the application included, in para.3, the following:

"3. The Applicant claims:
(A) that the Respondent's delegate in
considering the Applicant's claim for
refugee status:-
(a) breached natural justice by:-
(i) failing to offer the Applicant an
opportunity to make oral representations
in support of his application;
(ii) failing to make available to the Applicant
for comment all evidence before the delegate;"
delegate;"

Sub-paragraph (b) alleged improper exercise of the power to determine refugee status by reference to various grounds which it is not necessary for present purposes to set out. Other grounds in (B) and (C) alleged in effect that the delegate was acting under direction and that the Minister failed to observe procedural fairness by detaining members of the group in detention centres without providing free access to independent legal and other advice, community services and sources of evidence which would support their application for refugee status. The relief claimed included an order that the determination of the Minister's delegate or delegates reached without an oral hearing being afforded that members of the group do not have refugee status should be quashed and a direction made that any and every delegate of the Minister hear and determine questions of refugee status by way of oral hearing. Mandamus to like effect under s.39B of the Judiciary Act 1903 and costs were also claimed. What were said to be questions of law or fact common to the claims of the group members were set out in para.4 of the application and a claim for interlocutory relief raised under para.5.

4. The application faced obvious difficulties from the beginning, not the least of which was the definition of the group which in its terms would include persons whose applications for refugee status had been considered and granted.

5. On 5 January 1993, the Minister filed a motion seeking an order that the application be struck out as a representative proceeding. In the alternative an order was sought under s.33N(1) that the application no longer continue under Pt.IVA of the Federal Court of Australia Act 1976.

6. On 4 February 1993 after hearing argument, his Honour made the following orders:

1. The Respondent's notice of motion that the Applicant's
application be struck out is dismissed.
2. A Minute of proposed amendments to the Applicant's
application to be filed by 26 February 1993. This Minute
is to be treated as the application and may be endorsed
by a Judge if accepted without the need for further
hearing of the application.
3. Costs reserved.
4. The direction hearing is otherwise adjourned to 5 March
1993 at 10.45am.

7. In delivering his ex tempore oral reasons for decision on 4 February 1993, his Honour began by observing that he did not have any problem accepting in appropriate cases that representative proceedings are available for procedures under the Administrative Decisions (Judicial Review) Act. Whether an application was appropriate as a representative proceeding would depend upon whether there could be a proper definition of the group linked by either a common issue of fact or law. His Honour said he was not persuaded that on its face the application should be struck out as a group proceeding. He was troubled however by the question whether there was some obfuscation of the real issue in the pending application by the manner in which it was drawn and put before the Court notwithstanding that it may properly have been commenced as a representative proceeding. In so saying, his Honour noted that there was an overall discretion in the Court at any time to terminate representative proceedings in the interests of justice, for the protection of its own processes for litigation as a whole and the use of the Court for other parties. His Honour continued:

"Now there must be a need to keep a close eye on group
proceedings that they are not under the guise of group
proceedings bringing a whole host of individual
actions that will require manifold issues to be
determined under the guise of a single proceeding, and
amount to a series of separate trials within a trial
and the prospect of even some issues being relitigated
within the sub-issues. So it must be a matter that is
truly a common point that properly raises the need for
a group proceedings.
To that end I consider that the application should be
amended to exclude and excise all those materials that
are capable of being regarded as those referrable to
individual issues. The Act makes provision, as has
been pointed out, for a person to make to the Court a
submission that individual issues should be joined in
with whilst he is there as a group member and the
Court may deal with it if it thinks fit. But it is
inappropriate for all that to be done upfront and a
whole host of individual issues be thrust forward
under the guise of a group proceeding."

His Honour went on to say that he wanted to "see the matter reduced to the true group issue" and that he indicated appeared to turn on the question whether or not there had been a breach of natural justice in the manner in which applications for refugee status had been or were being dealt with and whether there was a statutory procedure established that had not been followed and whether there had been an improper exercise of the power provided by the Act. He wanted particulars to be provided within the amendment to the application to show how the issues raised related back to the group as a whole. His Honour went on:

"In other words, where there is a contention that
policy has been applied, to the exclusion of merits,
in order to show that that is not in fact, a matter
that involves individual applicants that may have been
applied in some cases and not in others, the
particulars to show just how it is to be relied upon
to say that that has been applied as a global policy
to all applications showing their entitlement to
proceed as a group. That having been done, the
application can then proceed.
There may be some merit in this in the end in that if
the issue is sufficiently refined to its core that it
will be available for expedition and the issue
determined quickly to the benefit of the entire group,
as well as to the benefit that flows from that for the
due administration of the Act thereafter. So the
application to strike out will not be granted. There
will be an order that there be an amendment of the
application."

His Honour went on to make the formal orders and decided to reserve costs on the motion. In doing that his Honour said he was not determining whether the application was able to stand as a group proceeding in a final way, merely that it was tenable as a group proceeding.

8. On 10 February 1993, the Minister filed a notice of motion for leave to appeal against his Honour's decision seeking an order that the hearing of the appeal be expedited. The motion was brought on as a matter of urgency on 12 February 1993 and I reserved judgment until today. The grounds of the proposed appeal raise the question whether the application as it presently stands discloses claims by group members within the meaning of s.33C of the Federal Court of Australia Act 1976, whether it specifies the nature of those claims as required by s.33H(1)(b) and whether it specifies questions of law or fact common to the claims as required by s.33H(1)(c). It was said also that his Honour erred in law in directing that Mr Zhang file a minute of proposed amendment to the application. This was said to be in error because there was no motion to amend and because of various specified deficiencies in the originating process.

9. There was some material put before the Court to demonstrate the importance of the case and the possible impact upon the processing of refugee applications of any interim relief that might be ordered. No interim relief has been ordered in respect of the group.

10. In its present state and particularly having regard to the obvious deficiencies in the application by which these proceedings were instituted, I do not consider that the case offers issues sharply enough defined for consideration by the Full Court in a way that would assist with the resolution or continuance of the proceedings. More importantly it is not at clear that Lee J. has, by his decision, precluded the Minister from raising any matter which might ground the striking out of an amended application. If the dismissal of the Minister's strike out motion were merely intended to leave the way open for the filing of an amended application which might raise the issues in dispute with more precision and perhaps offer a narrower group definition, then there would be no basis for granting leave to appeal at this stage. However, so that the matter may be beyond doubt, I propose not to dismiss the motion for leave but to adjourn it for hearing before Lee J. later this week in the light of his Honour's attitude to the Minister's right to raise, in respect of any amended application that is filed, objections that may have been canvassed before his Honour in respect of the original application.