Herman Mutaruha Chikonga v Minister for Immigration and Multicultural Affairs [1997] FCA 132 (6 March 1997)

CATCHWORDS

IMMIGRATION - transitional (permanent) visa - decision by delegate of Minister to cancel visa - decision of Immigration Review Tribunal affirming decision to cancel - application to review decision of Tribunal - application lodged in time with Tribunal identified as respondent - interlocutory order made amending respondent to refer to Minister - whether application should be dismissed - whether interlocutory order not competent

Federal Court Rules, O54B r2(1)

Migration Act 1958 (Cth), s475, s476, s478, s480

Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

Grovenor v Permanent Trustee Company of NSW Ltd (1966) 40 ALJR 329]

Mahboob v Minister for Immigration and Ethnic Affairs 1996 135 ALR 693

Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322

Reza Barzideh v Minister for Immigration and Ethnic Affairs (Hill J, 12 February 1997, unreported)

Ross v R [1979] HCA 29; (1979) 25 ALR 137

Taylor v Public Service Board [1976] HCA 36; (1976) 10 ALR 211

HERMAN MUTARUHA CHIKONGA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO WAG 100 OF 1996

R D NICHOLSON J

PERTH

6 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 100 OF 1996

B E T W E E N: HERMAN MUTARUHA CHIKONGA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 6 MARCH 1997

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The respondent's motion seeking dismissal of the applicant be granted.

2. The application be dismissed.

3. The applicant pay the costs of the respondent on the motion.

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 )

GENERAL DIVISION ) NO WAG 100 OF 1996

B E T W E E N: HERMAN MUTARUHA CHIKONGA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: R D NICHOLSON J

DATE: 6 MARCH 1997

PLACE: PERTH

REASONS FOR JUDGMENT

The respondent moves the Court to dismiss this application and, in a related matter, to set aside an interlocutory order made on 27 August 1996 to the effect that the present respondent be substituted as the respondent in lieu of the Immigration Review Tribunal ("the Tribunal").

The motion arises in the following circumstances. On 18 June 1996 the Tribunal affirmed a decision dated 11 October 1995 by a delegate of the Minister for Immigration and Ethnic Affairs to cancel the applicant's transitional (permanent) visa. In a letter bearing the same date the applicant was advised of the result of his application, provided with a copy of the reasons of the Tribunal and further advised of his right to seek review of the decision provided the application was made within twenty eight days of notification of the decision.

On 12 July 1996 the applicant signed an application for an order of review directed to the Tribunal as respondent. This was filed on 16 July 1996.

On 27 August 1996, in the course of a directions hearing, counsel for the Tribunal moved the Court to substitute the present respondent as the respondent. The order was consented to by the applicant.

On 12 February 1997 the decision in Reza Barzideh v Minister for Immigration and Ethnic Affairs (Hill J, 12 February 1997, unreported) was handed down. Hill J concluded the application by that applicant should be dismissed because it had not been brought against the Minister as respondent within the time allowed. He reached this conclusion after having concluded two other matters. The first was that the Refugee Review Tribunal had been in error of law. The second was that the application was proper even though it did not set out grounds but merely referred to the grounds as "to be later advised" and did not set out the relief claimed.

His Honour's reasons for concluding the application should be dismissed were:

"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 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 sections referred to in this portion of his Honour's reasons appear in Div2 of PtVIII of the Migration Act 1958 (Cth) ("the Act") and read:

"s478(1)An application under s476 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 par(1)(b).

s480 The parties to review of a judicially-reviewable decision are the Minister and:

(a) if the judicially-reviewable decision is covered by par475(1)(a) or (b) - the applicant in the review by the relevant Tribunal; or

(b) if the judicially-reviewable decision is covered by par475(1)(c) - the person who is the subject of the decision."

It is common ground the decision of the Tribunal made on 18 June 1996 is a judicially-reviewable decision as provided for in s475(1)(a) and the application was one brought under s476.

The essence of the reasoning of the Court in Barzideh, as I understand it, is that pursuant to s480 any application must fail unless it is made against the Minister and is lodged with a Registry of the Federal Court within twenty eight days of the applicant being notified of the decision. That not being the case in respect of the applicant Barzideh, the position could not be cured by the making of an interlocutory order, even on the motion of the respondent and by consent, because the effect of such order was to bring an application against the Minister outside the time permitted by s478(1)(b). In the present case it is conceded on behalf of the respondent that if an application had been brought to amend the name of the respondent within twenty eight days of the applicant being notified of the decision of the Tribunal, ss478 and 480 would not operate to occasion the dismissal of the application.

It should be observed that the Federal Court Rules, O54B r2(1) requires an application to review a judicially-reviewable decision under the Act to be made in accordance with Form 56. That form does not reflect in its reference to "respondent" the requirement in s480 that the Minister be the respondent party to an application. No advice to that effect was contained in the letter from the Tribunal to the applicant dated 18 June 1996.

For the applicant it is contended the reasoning in Barzideh in relation to s480 should not be followed in the present case. The first submission challenging such reasoning is that an examination of the words of s480 shows it to be declaratory in its terms. It is said to be significant the section does not say the respondent "shall be" the Minister. It is submitted s480 speaks indicatively so it is sufficient that any application made is thereby known to be one which involves the Minister. It is submitted the legislature's choice of the Minister as respondent is provided for only because it is clear it would be inappropriate if the Tribunal were to respond in respect of its own decision: Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-6.

This submission moves in tandem with the second submission that s478 is to be read separately from s480 and as standing on its own. The consequence of this, it is said, is that an application made under s478, not naming the Minister as respondent, is nevertheless a valid application open to amendment by interlocutory order as occurred in this case.

Thirdly, it is submitted the Minister would suffer no prejudice as a consequence of the interlocutory order made. The essential policy behind s478 it is submitted is that an application should not lie around and the grounds for them should be indicated and the Minister suffers no prejudice by not having been named as a respondent to the original application. It is therefore submitted that it is the substantive decision of the Tribunal which is the object of review so that the substitution of the Minister does not for the purposes of s478(2) have the effect of allowing a new application to be lodged out of time: cf Mahboob v Minister for Immigration and Ethnic Affairs 1996 135 ALR 693 at 699.

Fourthly, it was submitted the requirements of s478 concerning lodgment of applications should be read as mandatory at the time of lodgment but s480 could be satisfied at any time prior to the making of any binding orders: cf Grovenor v Permanent Trustee Company of NSW Ltd (1966) 40 ALJR 329 at 330.

I am unable to accept these submissions. In my opinion it is not open for s478 to be construed independently of s480. While s480 is not referred to in s478, it is proximate to it and it is not possible to properly construe s478 without reading s480. Section 478 takes its meaning in its context which includes s480.

The scope of a section or subsection may be limited by other sections of subsections in an Act: see Ross v R [1979] HCA 29; (1979) 25 ALR 137 at 145 per Gibbs J; Taylor v Public Service Board [1976] HCA 36; (1976) 10 ALR 211 at 215 per Barwick CJ. Different sections must be read in such a way that they will fit with one another: see Pearce and Geddes, Statutory Interpretation in Australia, 4th ed, Butterworths 1996, at 86-87, par4.2. These ordinary rules of statutory construction require the provisions of s478 to be given a construction which will render it harmonious with those of s480.

Two matters necessarily follow from the requirement in s480 that the Minister be the respondent party when read with s478. The first is that unless the Minister is made the subject of an application within the period of twenty eight days, no application may be brought: s478(1)(b). In Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 346, Sackville J, with whom Jenkinson and Kiefel JJ, agreed described the time limits in PtVIII of the Act as "stringent". The second is that if an order is made amending an application referring to a party other than the Minister and the amendment is made outside the twenty eight day period, that will be an order which has the effect of allowing an applicant to lodge an application against the Minister outside the specified period, contrary to s478(2). From the perspective of the statutory mandated respondent (the Minister) there is no application until he or she becomes a party to it. This is so even though the amendment may have been made on the motion of the respondent and by consent because the respondent lacks the authority to so move the Court and to so consent in the light of s478(2).

For these reasons I consider the relevant reasoning in Barzideh is applicable here and the application should be dismissed.

It should be noted that in his reasons in Barzideh, Hill J concluded he was "constrained by the legislature to sit idly by while injustice is done". That was a conclusion open to him because of the decision which he had reached in relation to the reasoning of the Refugee Review Tribunal. Although the reasoning of the Tribunal has not been argued before me, I share with Hill J in a sense of injustice at the application of the statutory technicality. I do so, not because I yet know whether there is merit in the applicant's case concerning the reasoning of the Tribunal, but because as an unrepresented applicant he has responded to the materials forwarded to him by the Tribunal and mandated by the rules of this Court and has done so within a time limit. In such circumstances it is harsh that his application should fail only because it has failed to comply by not naming the Minister as the respondent party.

As the application should be dismissed I see no point in acceding to the motion to set aside the interlocutory order.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 6 March 1997

APPEARANCES

Counsel for the Applicant: Mr P Johnston

Solicitors for the Applicant: S A Walker & Co

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 24 February 1997

Date of Judgment: 6 March 1997