Rishmawi v Minister for Immigration & Multicultural Affairs

[1999] FCA 611

FEDERAL COURT OF AUSTRALIA

Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611

IMMIGRATION – requirements of s 478 Migration Act 1958

PROCEDURE – non-compliance with rules (O 54B) – whether waiver under O 1 r 8 – whether jurisdiction to waive – whether test of substantial compliance

Migration Act 1958 (Cth), s 476, s 478
Federal Court Rules, O1 r 7, O 1 r 8, O 54B r 2
Federal Court Forms, Form 56

Metroinvest Anstalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513, 518, referred to
Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, referred to
Sharif v Minister for Immigration and Multicultural Affairs [1999] FCA 278, applied
Liu v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 345, 348, referred to

HANNA RISHMAWI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q 17 of 1999

KIEFEL J
5 MAY 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 17 OF 1999

BETWEEN:	HANNA RISHMAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	KIEFEL J
DATE OF ORDER:	5 MAY 1999
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1.The letter received by the Registry on 23 October 1998 is a valid application for the purpose of an appeal under s 478 Migration Act 1958.

2.The application filed 3 February 1999 be taken as an amendment to that filed on 23 October 1998.

THE COURT FURTHER DIRECTS THAT:

3.Ms Rishmawi further amend the application to

(i)make clear which part or parts of s 476(1) of the Migration Act 1958 are relied upon; and

(ii)identify the error, if any, in the reasons of the Refugee Review Tribunal.

4.The Applicant be allowed six weeks to complete the further amendment and notify both the Court and Mr Belcher.

5.Thereafter, the Respondent is to prepare a bundle of documents comprising relevant papers of the Refugee Review Tribunal file and the Departmental file and forward copies of it to the Court and to Ms Rishmawi.

6.The Respondent is to notify the judge’s associate when the matter is ready to be listed for hearing, or whether further directions are necessary.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 17 OF 1999

BETWEEN:	HANNA RISHMAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	KIEFEL J
DATE:	5 MAY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 5 May 1999 I made orders to the effect that a letter written by Ms Rishmawi in intended commencement of an application for judicial review be taken as her application under the rules and indicated to the parties that I would give further reasons beyond the outline provided that day.

2. Ms Rishmawi was notified by 12 October 1998 of the decision of the Refugee Review Tribunal, affirming its decision not to grant her a protection visa. On 21 October 1998, within the time limited for lodging an application to this Court under s 478 Migration Act 1958 (Cth), Ms Rishmawi wrote to the Court, identifying the file which had been before the Tribunal, advising what the Tribunal had decided and that she had been advised of appeal rights. It went to state:

   “I hereby make a formal application to the Federal Court for a review of the Tribunal’s decision”.

   It did not contain the grounds for the application.  Ms Rishmawi resides in North Queensland.  In the letter she asked for any necessary forms which needed to be completed to be sent to her.  This was not until 18 November 1998, after the time for the filing of an application had passed.  On 29 November 1998 she forwarded the completed forms, which still had substantial defects, but no issue was taken with that. 

3. The Minister brings to the attention of the Court the possible absence of jurisdiction, by reason that the letter of 21 October did not constitute an application.  If the Court considers that it does, the Minister does not dispute Ms Rishmawi’s right to amend it.

4. It is necessary, in the first place, to observe that the Migration Act does not make the Court’s jurisdiction dependent upon fulfilment with any condition set by it, save that with respect to the time for the bringing of an application (s 478(1)(b) and s 478(2)). Otherwise, s 478(1)(a) provides that an application to the Court for review must be made in such manner “as is specified in the Rules of Court”. A reference to the rules is of course to all of the rules and would include rules which permit waiver of non-compliance.

5. Order 54B r 2 of the Federal Court Rules provides that an application to review a judicially reviewable decision under the Migration Act must be in accordance with Form 56.  This was clearly not done here.  That form provides for the grounds for the application to be specified, the respondent to be named, and the claim for relief made.  Other requirements are that the date of notification of the judicially reviewable decision be specified (O 54B r 2(2)); and particulars be given of any allegation of fraud, bad faith or actual bias (r 2(3)).  It is not suggested that is appropriate here.

6. Order 1 r 8 permits the Court to dispense with compliance with any requirement of the rules “either before or after the occasion for compliance arises”.  Provisions such as this enable the Court, when faced with a failure to comply with the rules, to excuse that non-compliance without having first to decide whether the jurisdiction conferred by the rules apply:  see Metroinvest Anstalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513, 518. That would seem to me to overcome the concern expressed by the Minister, that failure to comply with the requirements relating to the application itself may have withheld jurisdiction and rendered impossible the application of the rules.

7. There is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require.  The failure to name the Minister as a party is of no effect.  He was later notified of the application and suffered no prejudice by that (and see Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695). Hill J in Sharif v Minister for Immigration and Multicultural

   Affairs ([1999] FCA 278), referring to that case, held that, logically, a Court must also then be in a position to permit an amendment to be made to an application to state the grounds of it. I respectfully agree. In this case it was plain that Ms Rishmawi was seeking to appeal the decision, which she clearly nominated. None of the missing information, the grounds and the date of notification, have an adverse impact upon the Minister in this case.

8. I was referred by the Minister to decisions in which a test of substantial compliance has been applied (see for example Liu v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 345, 348). Davies J considered that it was appropriate in that case, because there was only one omission. I do not think that such a test is either necessary under O 1 r 8 nor appropriate here. True it is that O 54B is cast in mandatory language, but O 1 r 8 is expressed in wide discretionary terms allowing waiver where there has been no compliance at all. It may be contrasted with provisions such as O 1 r 7(2) which provides that it shall be sufficient compliance with the rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires. That is a provision which permits compliance to be achieved; O 1 r 8 is concerned with dispensation where compliance can not be.

9. For these reasons I consider that Ms Rishmawi’s letter of 21 October 1998 ought to be regarded as the application filed. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             5 May 1999

The applicant appeared in Person.
Solicitor for the Respondent:	Mr M Belcher, Australian Government Solicitor
Date of Hearing:	5 May 1999
Date of Judgment:	5 May 1999