FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Perth City Mission [1999] FCA 670

PRACTICE AND PROCEDURE – joinder of parties – proper respondents in appeal against Administrative Appeals Tribunal decision – basis of joinder – Federal Court Rules- Order 6 rule 2 and Order 6 rule 8 – joinder available in Administrative Appeals Tribunal proceedings under Administrative Appeals Tribunal Act 1975.

Migration Act 1988 s 501

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Appeals Tribunal Act 1975 s 27, s 30(1A)

Federal Court Rules

Powell v Administrative Appeals Tribunal (1998) 161 ALR 15 cited

Bishop v Bridgelands Securities (1990) 25 FCR 311 followed

Malubel Pty Ltd v Wendy Elder & Ors (Fed Court 27/11/97 Moore J) followed

Qantas Airways Ltd v A.F. Little Pty Ltd (1981) 2 NSWLR 34 followed

News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 followed

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 followed

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v PERTH CITY MISSION

W31 of 1999

FRENCH J

19 MAY 1999

PERTH

THE COURT ORDERS THAT:

1.         John Dyson Powell and Marisa Powell are joined as respondents to this application pursuant to Order 6 rule 8(1)(a) of the Federal Court Rules.

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

REASONS FOR DECISION ON JOINDER OF PARTY

1                     The present application is brought by the Minister for Immigration and Multicultural Affairs by way of appeal from a decision of a Deputy President of the Administrative Appeals Tribunal given on 25 March 1999.

2                     The Perth City Mission, which is named as the respondent to the application, sponsored applications in July 1995 by John and Marisa Powell for migration to Australia.  On 22 November 1996 a delegate of the Minister refused to issue the relevant sub-class 103 family visa.  That decision was made under the provisions of s 501(1)(a) of the Migration Act 1988 on the basis the Powells were not, having regard to their general character, persons of good character (s 501(2)(a)(ii) of the Act).  The delegate’s decision was affirmed on appeal to the Administrative Appeals Tribunal by a decision given on 29 June 1998.  An application to the Federal Court for review of the Tribunal’s decision under the provisions of the Administrative Decisions (Judicial Review) Act 1977 was successful.  The matter was remitted to the Tribunal on 20 November 1998 on the basis that the Tribunal had failed to address the question of good character which it was required to address under s 501.  It had regard to past misconduct and to positive qualities of which it had evidence but, as I said at p 29 of the judgment:

“The Tribunal has not in terms brought these considerations together in an explicit assessment of the character of the Powells for the purposes of s 501.  Rather, it has weighed the seriousness of their misconduct against mitigating factors and seems to have decided that the former outweighed the latter.”

Powell v Administrative Appeals Tribunal (1998) 161 ALR 15

3                     The matter went back before a Tribunal differently constituted, albeit by a Deputy President.  The Deputy President decided that the decision under review be set aside and the matter remitted to the Minister’s delegate with a direction that the Powells not be refused visas on the basis of their bad characters.  In arriving at that outcome the Tribunal appears to have determined that both Mr and Mrs Powell were not of good character but nevertheless decided that it was not appropriate to exercise the general discretion provided for in the Act to refuse them visas having regard to other factors.  Particular importance appears to have been attached to the position of their daughter.

4                     On the appeal from the Tribunal the question of law identified by the Minister were as follows:

1.         Whether the Tribunal failed to take into account a relevant consideration namely the public interest in ensuring honesty in dealing with Australia’s migration officials and maintaining the integrity of Australia’s  immigration laws.

2.         Whether the Tribunal failed to give adequate reasons for its decision in failing to address the Minister’s submission that it should take into account that matter.

3.         Whether the Tribunal failed to give adequate reasons for its decision in failing to address the Minister’s submissions and evidence and material referred to by the Minister on whether the Tribunal should accept the evidence of Mr Powell’s son in relation to a central issue of harassment by Mrs Powell’s former husband.

5                     The Perth City Mission is named as respondent because it was the sponsoring party for the grant of visas and was the respondent in the Administrative Appeals Tribunal.  When the matter came on for directions on 4^th May, the question of the joinder of John and Marisa Powell as respondents was reserved for decision on the papers.

6                     Order 6 rule 2 of the Federal Court Rules provides:

“Two or more persons may be joined as applicants or respondents in any proceeding –

(a)       where –

            (i)        if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and

            (ii)       all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b)       where the Court gives leave so to do.”

7                     Order 6 rule 8 of the Federal Court Rules also provides for the addition of parties as follows:

“8(1)  Where a person who is not a party –

(a)       ought to have been joined as a party; or

(b)       is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon,

the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding.

  (2)  A person shall not be added as an applicant without his consent.”

8                     The discretion conferred on the Court in O 6 r 2(b) is broad.  The rule confers “a general discretion on the Court to permit joinder in any appropriate case, without any of the limitations which are contained in subr (a)” – Bishop v Bridgelands Securities (1990) 25 FCR 311 at 314.  The latter observation was made by Wilcox J in a case involving the proposed joinder of applicants in an action.  Each of the proposed applicants would have had his or her own cause of action, albeit they were related.  The case arose prior to the coming into operation, on 4 March 1992, of Part IVA of the Federal Court Act providing for Representative Actions.

9                     His Honour’s observations about the application of O 6 r 2(b) no doubt can be read against the context of the particular case with which he was dealing.  However they were, with respect, consistent with the broad language of that subrule.  In Malubel Pty Ltd v Wendy Elder & Ors (Fed Court 27/11/97) Moore J expressed his view that O 6 r 2(b) was designed to deal with the addition of parties when that would involve the addition of separate causes of action.  Order 6 rule 8 on the other hand was seen by his Honour as “a rule concerning the addition of a party to a claim or cause of action already formulated”.  In drawing this distinction his Honour referred to the judgment of Mahoney JA in Qantas Airways Ltd v A.F. Little Pty Ltd (1981) 2 NSWLR 34 at 50-53.  There a similar distinction was drawn between Pt 8 r 2 and Pt 8 r 8 of the New South Wales Supreme Court Rules 1970.

10                  There is no doubt, on the language of O 6 r 2(b) and O 6 r 8 a degree of overlap but the present case is one which is plainly appropriate for the application of O 6 r 8(1)(a).  The test for its application  was stated by the Full Court in News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193.  Referring to the opinion of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, the Full Court said at 298:

“An order which directly affects a third person’s rights against or liabilities to a party should not be made unless the person is also joined as a party.”

11                  In the passage from the judgment of the Privy Council to which the Full Court referred, one of the principal objects of the rule was defined as being “…to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard”.  That object, as the Privy Council observed, called for a flexibility of approach which made it undesirable to attempt to lay down any general proposition applicable to all cases.  The Full Court in similar vein said, at 298:

“The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected.”

12                  Although the Powells were not parties before the Administrative Appeals Tribunal there can be no doubt that the outcome of the Tribunal’s decision and of this appeal against that decision directly affects their rights.  Although the Perth City Mission was the sponsor seeking the grant of the visas to the Powells, there could be little doubt that their interests were affected by the decision appealed against in a way that would have entitled them to make their own application to the Tribunal (Administrative Appeals Tribunal Act 1975 s 27).  And even on the basis that the Perth City Mission was the applicant, the Powells could have been joined as parties to the proceeding before the Tribunal under s 30(1A) of the Administrative Appeals Tribunal Act  which provides:

“Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.”

For these reasons John Dyson Powell and Marisa Powell will be joined as respondents in these proceedings.

Associate:

Dated:              19 May 1999