Zhen Gang Lui v Minister for Immigration & Multicultural Affairs [1997] FCA 179 (18 March 1997)

CATCHWORDS

IMMIGRATION - application for review of decision of Refugee Review Tribunal - application failed to name Minister as respondent - whether substantial compliance with procedural requirements - whether grounds stated in application specified an error of law.

PRACTICE AND PROCEDURE - application failed to name Minister as respondent - whether substantial compliance with procedural requirements - whether Court can remedy defect in application - application not accompanied by an affidavit or a statement of claim - whether breach of Federal Court Rules.

Acts Interpretation Act 1901 (Cth) - s 25C

Federal Court Rules - O 1 r 8, O 4 r 6, O 13 r 2

Migration Act 1958 (Cth) - ss 475, 476, 478, 480, 485

Alexander v Immigration Appeal Tribunal [1982] UKHL 11; [1982] 1 WLR 1076

Ali v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 178

Barzideh v Minister for Immigration & Ethnic Affairs, (12 February 1997, unreported)

Chikonga v Minister for Immigration & Multicultural Affairs (6 March 1997, unreported)

Hakim v Minister for Immigration & Ethnic Affairs [1994] FCA 1055; (1994) 49 FCR 495

Hamilton v Minister for Immigration & Ethnic Affairs [1994] FCA 1424; (1994) 53 FCR 349

R v Immigration Appeal Tribunal; ex parte Alexander [1982] 1 WLR 302

ZHEN GANG LIU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1018 of 1996

Davies J

18 March 1997

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 1018 of 1996

)

GENERAL DIVISION )

BETWEEN: ZHEN GANG LIU

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram: Davies J.

Date: 18 March 1997

Place: Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

Motion for dismissal be refused.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 1018 of 1996

)

GENERAL DIVISION )

BETWEEN: ZHEN GANG LIU

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram: Davies J.

Date: 18 March 1997

Place: Sydney

REASONS FOR JUDGMENT

This motion brought on behalf of the Mini0ster for Immigration & Multicultural Affairs seeks an order striking out proceedings brought under Div 2 of Part 8 of the Migration Act 1958 (Cth) by the applicant, Mr Zhen Gang Liu, for the review of a decision of the Refugee Review Tribunal which had rejected his application for refugee status.

Mr Liu's application was written out in handwriting at a time when he was held at the Villawood Detention Centre. The inference can be drawn from the application on the Court file that it was received by facsimile transmission in the New South Wales District Registry and was dealt with accordingly. The original of that document is now in the Court's papers but presumably came at a later stage by post. The inference can be drawn that Mr Liu did not have the advantage of speaking with an officer of the New South Wales District Registry at the time when the document was filed.

The principal point put by the solicitor for the Minister is that the Minister was not named as a respondent. Although the name of the respondent was omitted from the application, there had been stamped on the application at the time of filing against the words "To the respondent address", the following:-

"To: The Respondent/s

c/- Australian Government Solicitor

Level 24, Piccadilly Tower

133 Castlereagh St

Sydney NSW 2000

GPO Box 2727 Sydney 2000; DX 444 Sydney

Attn: Julia Hall"

That is a stamp which is regularly placed on such applications by officers of the New South Wales District Registry at the time when the applications are filed.

Apparently the application was served in accordance with the above note, for on 31 December 1996, the Minister for Immigration & Multicultural Affairs appeared, the notice of appearance recording Mr Liu as applicant and the Minister as respondent. Subsequent documents filed have been similarly headed.

The solicitor for the Minister submitted that the application was invalid, not having named the Minister for Immigration & Multicultural Affairs as respondent, at least within 28 days of the applicant's being notified of the decision of the Immigration Review Tribunal. Lodgment within the 28 days criterion is not in issue, the point being that the Minister was not named as the respondent within that time.

Relevant provisions of the Migration Act 1958 (Cth) are:-

"475. (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:

(a) decisions of the Immigration Review Tribunal;

..."

"476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e) that the decision involved an error of law ... ;"

"478. (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)."

"480. The parties to the review of a judicially-reviewable decision are the Minister and:

(a) if the judicially-reviewable decision is covered by paragraph 475 (1)(a) or(b) - the applicant in the review by the relevant Tribunal; or

..."

"485 (1) In spite of any other law, including section 39B of the Judiciary Act 1903 , the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475 (2), other than the jurisdiction provided by this part or by section 44 of the Judiciary Act 1903 .

..."

Compliance with s 478(1)(b) is mandatory, for s 478(2) so provides; but that does not mean to say that every relevant provision of the Federal Court Rules must be strictly complied with. The Rules themselves provide for dispensation from compliance and for amendment. Order 1 r 8 provides:-

"8 The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises."

Order 13 r 2 provides:-

"2(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

2(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

2(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or (7) is made after any relevant period of limitation current, at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.

2(4) Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party.

2(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced."

If these rules needed any enhancement, which I think they do not, s 25C of the Acts Interpretation Act 1901 (Cth) provides:-

"25C. Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient."

In a matter such as this, it is, I think, sufficient that there be substantial compliance with the procedural requirements of s 478(1)(a). It is sufficient for me to refer to Hamilton v Minister for Immigration & Ethnic Affairs [1994] FCA 1424; (1994) 53 FCR 349; Hakim v Minister for Immigration & Ethnic Affairs [1994] FCA 1055; (1994) 49 FCR 495 and Ali v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 178.

In the circumstances of the case, I have no doubt that there was substantial compliance with the procedural requirements. The application was, on its face, an application seeking a review by the Federal Court of a decision of the Immigration Review Tribunal, which decision was annexed to the application. The application specified, not in legal terms, but at least in general terms, the reasons why the applicant sought review of the decision. There was only one fault with the document, ie, that the name of the respondent was not included.

This is a defect which the Court can remedy, for s 480(a) of the Migration Act specifies who the parties to the application are. As the Rules provide that, where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made, I consider that the Court may insert the name of the party specified by s 480 of the Migration Act, the applicant having been unaware of the name of the respondent.

I assume that the respondent was unaware that the Minister for Immigration & Multicultural Affairs must be a party to the proceedings for that name was omitted from the application. It is understandable that this was so, for this was not an ordinary lis inter partes, in the sense of a dispute between two persons. Traditionally indeed, proceedings by way of certiorari have been brought in the name of the Crown. It is interesting to note R v Immigration Appeal Tribunal; ex parte Alexander [1982] 1 WLR 302, which, on appeal, was named Alexander v Immigration Appeal Tribunal [1982] UKHL 11; [1982] 1 WLR 1076. What the applicant sought in the present case was review by the Court of a decision of the Immigration Review Tribunal. The Migration Act required the Minister to be a party but no part of the applicant's claim concerned an act or omission of the Minister.

In my opinion, the omission of the name of the Minister did not invalidate the application which, on its face, was an application seeking review by the Court of a judicially-reviewable decision and which was directed to and served upon the Minister's solicitor, the Australian Government Solicitor.

The solicitor for the Minister has asked me to follow the decisions in Barzideh v Minister for Immigration & Ethnic Affairs, (12 February 1997, unreported) and Chikonga v Minister for Immigration & Multicultural Affairs (6 March 1997, unreported). I am troubled that neither of those decisions discussed the authorities on substantial compliance which I have mentioned or authorities on the amendment of parties under O 13 r 2, particularly sub-rules (3) and (5), which permit an appropriate amendment to be made though a period of limitation has expired. Indeed, one view of the legislation is that once an application satisfying the description in s 476(1) has been lodged within the time prescribed by s 478(1)(b), then if the application has not named the parties correctly in accordance with s 480, that section makes amendment of the application mandatory.

However, it is not necessary for me to consider the decisions further. They raise a point which is different from the present and do not bind me on the facts which are here in issue.

The solicitor for the Minister also contended that there was a breach of the rules in that the application was not accompanied by an affidavit or a statement of claim as O 4 r 6 requires. I agree that that procedural requirement was not complied with. However, it is rare in migration cases to require compliance with this rule and it is only frequently complied with, particularly since the introduction of the 28 day time limit. Indeed, in most migration cases, statements of claim or affidavits, of the quality which one might expect to receive, would not be useful. Ordinarily, the only material required is the material which was before the decision-maker and a transcript of the evidence at that hearing. Accordingly, in practice, the Court dispenses with compliance with O 4 r 6 in migration cases and I would dispense with it in this case.

The solicitor for the Minister criticised the grounds stated by the applicant in his application, alleging that they do not specify an error of law. However, the application's handwritten statement is in fact more informative than many statements of grounds prepared by lawyers, which so often specify formal legal grounds but convey no useful information at all. Here, although the applicant has not specified an error of law in legal terms, he has made clear the basis of his claim for refugee status and has raised also a problem he has encountered through lack of legal aid. I doubt that any further clarification by the applicant of his grounds of application would be useful.

For the reasons I have given, I am satisfied that the application lodged by the applicant was a valid application. Accordingly, the motion for dismissal will be refused.

I certify that this and the 7 preceding pages

are a true copy of the reasons for judgment herein of

the Honourable Justice Davies.

Associate:

Date: 18 March 1997

No appearance for the applicant.

Counsel for the respondent: R. Cheetham, solicitor

Solicitor for the respondent: Australian Government Solicitor

Date of hearing: 27 February 1997

Date of judgment: 18 March 1997