Reza Barzideh v Minister for Immigration & Ethnic Affairs [1997] FCA 51 (12 February 1997)

CATCHWORDS

ADMINISTRATIVE LAW - Application for review of decision of Refugee Review Tribunal - application lodged in incorrect form and with wrong party - whether application lodged in the manner specified in the Federal Court Rules - whether order permitting amendment to add Minister as party made outside 28 day period in which application is to be filed rendered proceedings competent.

Migration Act 1958 (Cth): ss475, 476, 478, 480, 485, 486.

Federal Court Rules: O1 r8, O53A r2, O54, O54B, Form 56.

Administrative Decisions (Judicial Review) Act 1976 (Cth): s11.

Dai Xing Yao v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996); considered and applied.

Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693; applied.

REZA BARZIDEH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

HILL J

SYDNEY (Part Heard in Perth)

12 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

WESTERN AUSTRALIA DISTRICT REGISTRY ) No WAG 54 of 1995

)

GENERAL DIVISION )

ON APPEAL FROM A DECISION OF

THE REFUGEE REVIEW TRIBUNAL

BETWEEN: REZA BARZIDEH

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: HILL J

PLACE: SYDNEY (Part Heard in Perth)

DATED: 12 FEBRUARY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Application be dismissed.

2. Applicant to pay the respondent's costs up to but not including the costs of the hearing on 17 December 1996. Otherwise there be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

WESTERN AUSTRALIA DISTRICT REGISTRY ) No WAG 54 of 1995

)

GENERAL DIVISION )

ON APPEAL FROM A DECISION OF

THE REFUGEE REVIEW TRIBUNAL

BETWEEN: REZA BARZIDEH

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: HILL J

PLACE: SYDNEY (Part Heard in Perth)

DATED: 12 FEBRUARY 1997

REASONS FOR JUDGMENT

On 2 May 1995 the Refugee Review Tribunal published reasons affirming a decision made on behalf of the Minister for Immigration and Ethnic Affairs ("the Minister"), that the applicant, Mr Barzideh, was not entitled to a protection visa. On 2 June 1995 there was lodged in the Court a document headed "Notice of Appeal" which referred to O53A r2 of the Federal Court Rules. Omitting formal notifications dealing with directions hearings and filing of appearance, the notice of appeal was in the following terms:

"On appeal from the refugee Review Tribunal constituted by J. Vrachnas.

BETWEEN Reza BARZIDEH, applicant

and

Refugee Review Tribunal, Respondent

NOTICE OF APPEAL

1. TAKE NOTICE that the applicant appeals from the decision of Refugee Review Tribunal constituted by J. Vrachnas given on 4th May 1995 at melbourne whereby the Tribunal decided to that the applicant, Reza BARZIDEH, is not a refugee therefore not entitled to a Protection Visa.

2. THE QUESTIONS OF LAW raised on the appeal, and

3. ORDERS SOUGHT, and

4. GROUNDS, will be specified as soon as legal advice is given. The reason for this application to be incomplete is due to the fact that it has been difficult to access proper legal advice and also to the fact that Monday will be the last day to lodge this application, (since the 28 days given to apply).

Date: 2 June 1995"

It will be noted that the "Notice of Appeal" named the Refugee Review Tribunal as the respondent, notwithstanding the provisions of s480 of the Migration Act 1958 ("the Act") which require that the Minister be a party. On 13 October 1995 Nicholson J made orders substituting the Minister for the Refugee Review Tribunal and giving liberty to Mr Barzideh to file and serve an amended application giving particulars of the grounds on which he proposed to rely.

An "Amended Notice of Appeal" was filed on 2 February 1996. That document set out the questions of law said to be raised on the appeal and the grounds of it.

Ultimately the matter came before me for hearing. At all times, both in directions hearings and in the proceedings before me, Mr Barzideh was unrepresented. He was assisted by an interpreter, but took no real part in the proceedings.

On the evening before the hearing was to commence the Minister raised for the first time a question of the Court's jurisdiction. Mr Barzideh was not prepared to deal with that matter. With the consent of the parties, I heard argument on the merits of Mr Barzideh's appeal from the Refugee Review Tribunal. I was influenced in this course by an indication from counsel for the Minister that there was pending before a Full Court of this Court a decision which would raise the same jurisdictional issue. The case to which counsel referred was Dai Xing Yao v Minister for Immigration and Ethnic Affairs (unreported, decided on 18 September 1996). However, a perusal of that decision makes it clear that the decision, while favourable to the Minister, was not determinative of the present case.

On 21 August 1996 I delivered reasons dealing with the merits of the present "appeal". I concluded that the Tribunal had erred in law and that, subject to the question of jurisdiction, Mr Barzideh's application should be remitted to the Tribunal to be heard again in accordance with law.

The matter has now been relisted for argument on the jurisdictional question. Written submissions were filed on behalf of the Minister. Mr Barzideh continued to be unrepresented. Even though he was assisted by an interpreter, it was clear that he was unable to deal with the jurisdictional question. I directed that he file and serve any written submissions he may wish to make on the jurisdictional question by 17 January 1997. Written submissions were prepared on his behalf.

The jurisdictional question arises in the present way. Jurisdiction to review what the Act refers to as "judicially reviewable decisions" is conferred upon this Court to the exclusion of all other courts other than the High Court by s486 of the Act. A decision of the Refugee Review Tribunal is a judicially reviewable decision. The grounds of judicial review, however, are limited to those in s476 of the Act. Having regard to the terms of ss476, 485 and 486 of the Act, it is clear that the only jurisdiction which the Court has to review decisions of the Refugee Review Tribunal is that conferred in s486. Specifically there could be no jurisdiction arising under s39B of the Judiciary Act 1903 or the Administrative Decisions (Judicial Review) Act 1976 ("the ADJR Act"): Dai Xing Yao (supra); Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693. Section 478 of the Act provides as follows:

"(1) An application under section 476 or 477 must:

(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)."

There is no evidence of the date upon which Mr Barzideh was notified of the Tribunal's decision. However, it has not been submitted by the Minister that the notice of appeal was lodged outside the twenty-eight day period referred to in s478(1)(b) and accordingly I proceed upon the basis that the application is not barred by force of s478(1)(b) merely because the notice of appeal was lodged on 2 June 1995.

Order 54B of the Federal Court Rules, inserted by Statutory Rule No. 332 of 1994 effective 6 October 1994 (that is to say subsequent to the provisions of ss475 to 486 of the Act coming into operation) reads relevantly as follows:

"1 Subject to this Order, the Rules of Court prescribe the manner of making an application for review of a judicially-reviewable decision under the Migration Act 1958.

2(1) An application to review a judicially-reviewable decision under the Migration Act 1958 must be in accordance with Form 56.

2(2) An application to review a judicially-reviewable decision under the Migration Act 1958 must indicate the date that the applicant was notified of the judicially-reviewable decision.

2(3) If the grounds of the application include an allegation of fraud, bad faith or actual bias, the applicant must set out in the application particulars of the fraud, bad faith or actual bias relied on."

Order 53A is concerned with appeals from the Immigration Review Tribunal and not with appeals from the Refugee Review Tribunal.

Form 56 is headed "Application for an Order of Review". It requires an applicant to set out the reasons why the applicant is aggrieved by the decision or conduct which is identified in the application, the grounds of the application and the relief which is sought. The formal parts dealing with directions hearings and appearance are virtually identical to those in the applicant's "Notice of Appeal".

The short and unattractive submission of the Minister is that an application under s476 of the Act 1901 must be made in the manner specified in the Rules and within the time specified in s478(1). Although the Minister's submissions point to the failure to comply with Form 56, that failure is not as such the matter relied upon. Rather, it is said that the Federal Court Rules given statutory effect by the Act require there to be an application which sets out grounds and relief sought. An application such as the present "notice of appeal" which sets out no grounds nor indicates orders sought is not in any way, it is said, even a substantial compliance with the Rules. It is accepted in these submissions that substantial compliance with the Rules would suffice. So it is said that in the present case what Mr Barzideh has done falls well short of compliance with the Rules so as not to constitute his having filed an "effective" application. There being no effective application, there could be no effective amendment outside the twenty-eight day period. So it is said if now the Court were to permit Mr Barzideh by amendment to raise grounds for review of the decision not initially raised by him, this would have the effect of allowing him to lodge an application outside the twenty-eight day period.

Section 478(1)(a) is concerned with the manner in which an application for review of a judicially-reviewable decision must be made. The subsection is not concerned with matters of form. The dichotomy between manner and form is taken up in O54B rr1 and 2. So the provisions of O54B r1 are the corollary to the provisions of s478(1)(a) of the Act. Rule 1 brings into play the whole of the Rules of Court unless otherwise in conflict with the provisions of O54B. Specifically, applications for review are to commence by way of an application to which the provisions of O4 of the Rules will apply. The application will need to be filed and served. Order 1 r 8 which permits the Court to dispense with compliance of the requirements of the Rules is not in my view negated by the provisions of O54B and in an appropriate case I see no reason to doubt that the Court could dispense with compliance of any particular rule relevant to the application. So, for instance, if the application did not contain, if lodged by a solicitor, the name, address and telephone number of the solicitor, there seems no reason to doubt that the Court could dispense with that requirement.

This distinction between manner and form can be observed by comparing the provisions set out above with those in s11 of the ADJR Act and O54 of the Federal Court Rules. Section 11 of the ADJR Act is in the following terms:

"11(1) An application to the Court for an order of review -

(a) shall be made in such manner as is prescribed by Rules of Court;

(b) shall set out the grounds of the application; and

(c) shall be lodged with a Registry of the Court ...".

Order 54 rr1 and 2, dealing with applications under the ADJR Act are as follows:

"1 Subject to this Order, the Rules of Court prescribe the manner of making an application under the Administrative Decisions (Judicial Review) Act 1977.

2 An application for an order of review made under the Administrative Decisions (Judicial Review) Act 1977 shall be in, or substantially in, the form numbered 56 in the First Schedule."

No implication can be made from the use of the word "must" in O54B replacing "shall" in O54 r2, or the use of the words "substantially in" in O54 r2.

A comparison of the above provisions suggests also that the grounds of the application were not regarded by Parliament as being part of the "manner" prescribed by Rules of Court so that it was necessary for the ADJR Act to deal specifically with the need for the application to state the relevant grounds.

I would conclude that all s478(1)(a) requires is that there be lodged with the Court within the relevant time an initiating process by way of an application recognisable as such in accordance with O 54 of the Federal Court Rules. In my view the fact that the application did not set out grounds but merely referred to the grounds as "to be later advised" or for that matter did not set out the relief claimed, would not operate to invalidate the application. There would still have been an application brought to the court in the manner specified in the Rules of Court. It can not be thought that Parliament intended that there be such slavish compliance with the Federal Court Rules that an applicant appealing a decision of the Refugee Review Tribunal, unable to obtain legal aid, could be defeated by a mere technicality. Thus but for one matter to which I must now come, I would have been of the view that the Court did have jurisdiction to review the decision of the Immigration Review Tribunal because there had been filed an originating process in the Court, even if not in strict compliance with the Rules of the Court as to form.

However, there is a further complication. It follows from s478 of the Act that the application to be lodged with the Court within the time stipulated must be an application to which the Minister is a party. So much appears from s480 of the Act which so stipulates. But what happened here is that the application was an application to which the Minister was not a party at all. It purported to be an application to which the Tribunal was a party. It was only as a consequence of a subsequent order by Nicholson J that the Tribunal ceased to be a party and for the first time the Minister became a party. But that order was made more than twenty-eight days from the date of notification of the Tribunal of the decision. It was an order which the Court was not authorised to make. It should, in my view, be set aside as incompetent. The order being interlocutory, there can be no doubt of the power to set it aside, notwithstanding no appeal was brought from it. The submission on Mr Barzideh's behalf to the contrary fails to distinguish interlocutory from final orders.

Hence I am constrained by the legislature to sit idly by while injustice is done. However, the applicant is not without a remedy. An application may be brought in the High Court's original jurisdiction for judicial review relying upon s39B of the Judiciary Act (Cth). Whether the High Court can remit the matter to this Court, having regard to s485(3) of the Act, or to the Supreme Court (otherwise an inappropriate tribunal and perhaps lacking jurisdiction as a result of the ADJR Act) will, no doubt, be a matter for it. If all other avenues are closed, then the High Court may be required to decide the application itself.

I certify that this and the

preceding ten (10) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date: 12 February 1997

Applicant appeared in person.

Counsel and Solicitors JD Allanson instructed by the

for the Respondent: Australian Government Solicitor.

Dates of Hearing: 17 December 1996

Date Judgment Delivered: 12 February 1997