Yu Xiu Wu v Minister for Immigration & Multicultural Affairs

[1997] FCA 494

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)     No. VG748 of 1996
)
GENERAL DIVISION	)

BETWEEN:		YU XIU WU Applicant
AND:		THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
CORAM:	BEAUMONT, BURCHETT & GOLDBERG JJ.
PLACE:	SYDNEY
DATED:	6 JUNE 1997

MINUTES OF ORDERS

THE COURT ORDERS:

1. That in lieu of the questions stated in the special case, the following question should be answered:

“Q.Should the respondent’s objection to competency be upheld or overruled?"

2.   That this question be answered as follows:

“A.The objection should be overruled."

1. That the matter be remitted to a single Judge to be dealt with in accordance with these reasons for judgment.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)     No. VG748 of 1996
)
GENERAL DIVISION	)

BETWEEN:		YU XIU WU Applicant
AND:		THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
CORAM:	BEAUMONT, BURCHETT & GOLDBERG JJ.
PLACE:	SYDNEY
DATED:	6 JUNE 1997

REASONS FOR JUDGMENT

THE COURT:

On 31 May 1994 the applicant applied under the Migration Act 1958 for the grant of a Class 816/818 (Special Permanent) entry permit. On 24 August 1995 that application was rejected. An application for review of that decision was made to the Migration Internal Review Office on 22 September 1995. The decision was affirmed by that Office on 13 February 1996. The applicant then applied to the Immigration Review Tribunal (“the Tribunal”) for a review of that decision by application lodged on 4 March 1996.

By a document headed “Immigration Review Tribunal Statement of Decision and Reasons for Decision” bearing the date 20 November 1996, the Tribunal affirmed the decision under review.  The decision and reasons were sent by post to the applicant under cover of a letter dated 21 November 1996, which included the statement:

“You may apply to the Federal Court of Australia for a review of this decision on one of the grounds set out in Section 476 of the Migration Act.  Any such application must be made within 28 days of notification of this decision."

On 17 December 1996 the applicant, acting in person, filed an application and statement of claim in this Court in respect of the decision of the Tribunal, naming as the respondent “Immigration Review Tribunal, Michelle Scott”.

On 17 December 1996 the Australian Government Solicitor was served with a copy of the said application and statement of claim.  Then, on 18 December 1996, a notice of appearance was filed in this Court by the Australian Government Solicitor showing “Yu Xiu Wu” as applicant and “Immigration Review Tribunal, Michelle Scott” as respondent.  The body of the notice stated “The Respondent herein appears”.

By letter dated 30 December 1996, the Australian Government Solicitor wrote to the applicant advising her, amongst other things that the proper respondent should be the Minister for Immigration and Multicultural Affairs.

On 26 February 1997 the respondent filed in this Court a Notice of Objection to Competency.  That Notice stated:

“1.The decision identified in the application is a judicially reviewable decision within the meaning given to that expression by section 475(1) of the Migration Act 1958. Subsection 478(1)(b) of the Migration Act 1958 provides that the application must be lodged with the Registry of the Federal Court within 28 days of the Applicant being notified of the decision.

2.Section 480 of the Migration Act 1958 specifies that the parties to the review of a judicially reviewable decision are the Minister and the Applicant. The Application fails to properly name the Respondent and the Court has no jurisdiction to substitute the name of the Minister."

This case raises the same point of principle as that considered by this Court in the matter of Yong Jun Qin v The Minister for Immigration and Multicultural Affairs, in which judgment was delivered today.

In accordance with the reasoning in Qin, we make the following orders:

1. That in lieu of the questions stated in the special case, the following question should be answered:

“Q.Should the respondent’s objection to competency be upheld or overruled?"

2.   That this question be answered as follows:

“A.The objection should be overruled."

1. That the matter be remitted to a single Judge to be dealt with in accordance with these reasons.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:       6 June 1997

Counsel and Solicitor for the Applicant:	The applicant, Y X Wu, appeared in person
Counsel for the Respondent:	A Robertson SC with R Downing
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Hearing:	30 May 1997
Date of Judgment:	6 June 1997