FEDERAL COURT OF AUSTRALIA

Basbas v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1602

MIGRATION – visa – application for relief in respect of decision of Migration Review Tribunal – named applicant a person without standing to apply – named applicant seeking to amend title of proceeding to substitute competent applicant – time limit for application to the Court expired – whether statutory requirements as to parties jurisdictional or procedural – whether proceeding competent – whether to apply to amend title to proceeding is to continue proceeding – power of Court to amend parties of its own motion

Migration Act 1958 (Cth) ss 338(2), 347(2), 477(1), 477(2), 478, 479, 486C

Federal Court Rules O 13 r 2

Migration Regulations 1994 (Cth) reg 1.03

Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155 – applied

Liu v Minister for Immigration & Multicultural Affairs (1997) 72 FCR 345 – applied

Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125 – followed

NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [13] – referred to

VHAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1243 at [48] – [53] – referred to

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 at [86] – [90] – referred to

FROILAN BASBAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 583 of 2002

GRAY J

19 DECEMBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The time limit for the filing of the respondent’s notice of objection to competency be extended to 10 October 2002.

2.         The objection to competency be dismissed.

3.         The motion the subject of the notice of motion filed on 25 October 2002 be dismissed.

4.         The title to the proceeding be amended by substituting the name “Froilan Basbas” for
            the name “Maria Perkins” as the name of the applicant and by substituting “Minister
            for Immigration and Multicultural and Indigenous Affairs” for “Department of
            Immigration and Multicultural Indigenous Affairs” as the name of the respondent.

5.         The costs of the day on 28 October 2002 be reserved.

6.         Otherwise, there be no order as to the costs of the notice of objection to competency
            or the notice of motion filed on 25 October 2002.

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

REASONS FOR JUDGMENT

1                     It is necessary to determine whether this proceeding should be dismissed as incompetent, or whether an amendment can be made to the title of the proceeding, substituting the name of a competent applicant for the name of a person who has purported to apply but has no standing to do so.

2                     Mr Froilan Basbas is a citizen of the Philippines.  On 10 February 1998, while in Australia, he applied, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”), for a visa of the kind known as a Family Residence (Class AO) subclass 806 visa.  In order for the visa to be granted, it was necessary that the Minister for Immigration and Multicultural Affairs, who is now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, “the Minister”), or his delegate, be satisfied that there was someone for whom Mr Basbas was a “special need relative”, within a definition then found in reg 1.03 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”).  For present purposes, it is unnecessary to canvass all of the terms of that definition.  It was intended to apply where a person had a permanent or long-term need for assistance, which could not reasonably be obtained from someone else.  In this case, the delegate of the Minister was not so satisfied and, on 9 January 2001, the delegate refused to grant the visa. 

3                     Mr Basbas exercised his right to apply to the Migration Review Tribunal (“the Tribunal”) for merits review of that decision.  He was assisted in that application by a migration agent (“the first migration agent”).  On 14 August 2002, the Tribunal published a written statement of its decision and its reasons.  Its decision was to affirm the decision under review, finding that Mr Basbas was not entitled to the grant of the visa he sought.  The decision turned upon questions of the state of health of Mr Basbas’s mother, Maria Perkins, and on whether she could reasonably obtain from someone else the assistance Mr Basbas gave her. 

4                     Consequent upon the Tribunal’s decision, Ms Perkins spoke with the first migration agent, who advised that it was very costly to appeal to this Court, and recommended another approach to the Minister. 

5                     Ms Perkins and Mr Basbas decided to change migration agents.  On 15 August 2002, they both attended the office of another migration agent (“the second migration agent”).  They received advice that they were able to apply to the Court to have the Tribunal’s decision reviewed.  They were also given advice about the twenty-eight day time limit on such a step.

6                     Following that advice, Ms Perkins and Mr Basbas discussed the advice and decided that they would institute a proceeding in the Court.  On 29 August 2002, they both returned to the office of the second migration agent, who prepared an application to the Court.  The second migration agent advised that Ms Perkins should be the person to sign the application.  It was prepared by means of handwriting on a form, printed in order to comply with Form 56 in the Schedule to the Federal Court Rules.  (It should be noted that this form was designed for applications pursuant to Pt 8 of the Migration Act as it stood prior to amendments that came into operation on 2 October 2001.  Since then, the form has been inappropriate for invoking the jurisdiction of the Court pursuant to s 39B of the Judiciary Act 1903 (Cth).)  The handwriting is that of the second migration agent.  The form is signed by Ms Perkins as applicant.  The title to the proceeding names “Maria Perkins” as applicant and “Department
of Immigration and Multicultural Indigenous Affairs” as respondent.  The document was filed in the registry of the Court on 9 September 2002.

7                     There is no dispute that the decision of the Tribunal is a “privative clause decision”, within the meaning of that term as defined in s 5(1) and s 474(2) of the Migration Act.  The relevant provisions of Pt 8 of the Migration Act as it presently stands are as follows:

“477    Time limits on applications for judicial review

(1)       An application to the Federal Court under section 39B of the Judiciary
            Act 1903 for:

            (a)        a writ of mandamus, prohibition or certiorari; or

            (b)        an injunction or a declaration;

            in respect of a privative clause decision in relation to which the
            jurisdiction of the Federal Court is not excluded by section 476 must
            be made to the Federal Court within 28 days of the notification of
            the decision.

...

(2)       The Federal Court or the Federal Magistrates Court must not make
            an order allowing, or which has the effect of allowing, an applicant
            to lodge an application referred to in subsection (1) or (1A) outside
            the period specified in that subsection.

...

478      Persons who may make application

An application referred to in section 477 may only be made by the Minister and:

(a)       if the privative clause decision concerned was reviewable under Part
            5 or 7 or section 500 of this Act and a decision on such a review has
            been made―the applicant in the review by the relevant Tribunal; or

(b)       in any other case―the person who is the subject of the decision; or

(c)        in any case―a person prescribed by the regulations.”

It should be noted that the decision of the Tribunal was made under Pt 5 of the Migration Act.

8                     In Pt 8A of the Migration Act is to be found s 486C, which may also be relevant to the present case.  It provides relevantly as follows:

“(1)     Only the persons mentioned in this section may commence or continue
            a proceeding in the Federal Court ... that raises an issue:

            (a)        in connection with visas (including if a visa is not granted or
                        has been cancelled), deportation, or removal of unlawful
                        non-citizens; and

            (b)        that relates to the validity, interpretation or effect of a
                        provision of this Act or the regulations;

            (whether or not the proceeding raises any other issue).

(2)       Those persons are:

            (a)        a party to a review mentioned in section 479; or

            (b)        the Attorney-General of the Commonwealth or of a State or a
                        Territory; or

            (c)        a person who commences or continues the proceeding in
                        performing the person’s statutory functions; or

            (d)        any other person prescribed by the regulations.

            Scope of rule

(3)       This section applies to proceedings in the Federal Court’s jurisdiction
            under Part 8 of this Act, section 39B ... of the Judiciary Act 1903 ...

(4)       To avoid doubt, nothing in this section allows a person to commence
            or continue a proceeding that the person could not otherwise
            commence or continue.

            Relationship with other laws

(5)       This section has effect despite any other law.”

9                     On 10 October 2002, the respondent filed a notice of objection to competency of the proceeding, on the ground that the named applicant lacked standing to bring the application.  The notice was outside the time limit referred to in O 54B r 3 of the Federal Court Rules (fourteen days after service of the application).  Counsel for the respondent sought an extension of that time pursuant to O 3 r 3.  There was no objection to such an extension.  Service of the application must have been effected some time between 9 September 2002, when it was filed, and 13 September 2002, when the respondent’s notice of appearance was filed.  Accordingly, the respondent was in default for somewhere between thirteen and seventeen days.  In the light of the absence of any objection to an extension of time, it is appropriate to grant one.

10                  On 25 October 2002, Ms Perkins filed a notice of motion, seeking an order that the application be amended to correct the name of the applicant from “Maria Perkins” to “Froilan Basbas”, pursuant to O 13 r 2 of the Federal Court Rules, on the ground that there had been a mistake in the identity of the applicant.  The relevant provisions of O 13 r 2 are as follows:

“(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)       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.

(3)       Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or paragraph (7)(a) 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.

(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.

(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.”

11                  Both the objection to competency and the motion to amend were the subject of argument on 28 October 2002.  It was common ground that Ms Perkins lacked standing to make an application to the Court for review of the Tribunal’s decision.  As a matter of fact, both Mr Basbas and Ms Perkins were named as applicants in and signed the form of application to the Tribunal for review of the delegate’s decision.  Section 347(2) of the Migration Act specified the persons who could make application to the Tribunal for review of various kinds of decisions.  By a combination of s 347(2)(a) and s 338(2), only Mr Basbas could apply to the Tribunal in respect of a decision refusing him a visa of the kind he sought.  (Section 347(2) makes express provision for application to the Tribunal by persons other than the person applying for the visa, in the case of certain kinds of visas.)  As a consequence, s 478(a) operated to restrict the field of potential applicants to the Court to Mr Basbas alone.  Because there has been a decision on a review under Pt 5 of the Migration Act, s 478(b) cannot apply.  There have been no regulations made, prescribing any person pursuant to s 478(c).  Section 479 confirms that the only parties to a review by the Court of the Tribunal’s decision in the present case could be Mr Basbas and the Minister.  Despite the fact that the application named as the respondent “Department of Immigration and Multicultural Indigenous Affairs”, the Minister seems to have accepted that he was in fact the respondent in the proceeding.  He has filed documents describing the respondent as “Minister for Immigration and Multicultural and Indigenous Affairs”.  Although no application for amendment in that respect has been made, if the matter is to proceed, such an amendment appears necessary.

12                  The question, therefore, is whether it is now possible to amend the title to the proceeding to substitute the name of Mr Basbas for that of Ms Perkins as applicant.  It is convenient first to examine such authorities as there are on the question of amendment to substitute parties in proceedings pursuant to the Migration Act.

13                  In Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155, the Full Court considered the question whether the Court lacked jurisdiction in relation to an application in which a tribunal, and not the Minister, was named as the respondent.  At the time, ss 479 and 480 of the Migration Act were in terms relevantly indistinguishable for present purposes from the current ss 478 and 479 respectively.  The Full Court held that the Court acquired jurisdiction when the application was filed and the issue of amendment of the name of the respondent was purely procedural and lay within the competence of the Court to deal with.  At 167 – 168, the Court said:

“In order to characterise a mere matter of form as ‘jurisdictional’, extremely clear language is needed.  An analogy may be found, of a sort that is very much a fortiori, in a frequently cited passage in Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369, where Dixon J said (at 391):

            ‘It cannot be denied that, if the legislature see fit to do it, any event or
            fact or circumstance whatever may be made a condition upon the
            occurrence or existence of which the jurisdiction of a court shall
            depend.  But, if the legislature does make the jurisdiction of a court
            contingent upon the actual existence of a state of facts, as
            distinguished from the court’s opinion or determination that the facts
            do exist, then the validity of the proceedings and orders must always
            remain an outstanding question until some other court or tribunal,
            possessing power to determine that question, decides that the
            requisite state of facts in truth existed and the proceedings
            of the court were valid.  Conceding the abstract possibility of the
            legislature adopting such a course, nevertheless it produces so
            inconvenient a result that no enactment dealing with proceedings in
            any of the ordinary courts of justice should receive such an
            interpretation unless the intention is clearly expressed.’

It would be surprising if the Act were to be construed to mean that the consequence of a failure by an applicant to take the procedural or formal step of correctly naming a particular party as respondent, is that the Court lacks any jurisdiction to deal with any aspect of the matter.  On the other hand, failure to take such a step could readily be seen as a question of practice and procedure and thus within the jurisdiction, and power, of the Court to entertain in the exercise of its discretionary powers to control its procedures.”

14                  The Court therefore held that the proceeding was not incompetent because the wrong respondent was named in the original application.  The Court followed the judgment of Davies J in Liu v Minister for Immigration & Multicultural Affairs (1997) 72 FCR 345, in which his Honour held that an application pursuant to the Migration Act for review of a decision of the Immigration Review Tribunal was not invalidated by failure to name the Minister as respondent.  In Yong, the Court also overruled three earlier judgments of single
judges of the Court, in which it had been held that the Court lacked jurisdiction to deal with applications in which the Minister was not named as respondent.

15                  In Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125, North J dealt with a case in which, like the present case, the applicant named was a person who lacked standing to bring the proceeding.  In that case, it was the sponsor of the person applying for a visa who was the only person permitted to seek review by a tribunal of an initial decision refusing the grant of a visa and to seek review by the Court of that tribunal decision.  Instead, the person applying for the visa, rather than the sponsor, was named as applicant in the application to the Court.  Again, ss 479 and 480 of the Migration Act were in terms relevantly indistinguishable from the present ss 478 and 479.  By the time his Honour considered the question of amendment, the time limit for commencing a proceeding in this Court for review of a decision under the Migration Act had expired.  The facts of Wickremasinghe were therefore indistinguishable from the facts of the present case.

16                  North J followed Yong.  He rejected an argument that, whilst Yong had held that the requirement to name the correct respondent was procedural, not jurisdictional, s 479 (now s 478) imposed a jurisdictional requirement.  At 130, his Honour said:

“The failure to correctly name an applicant is no less likely to be dealt with in a statute as a procedural matter than the failure to correctly name a respondent.  This is especially so where, as in the present statutory scheme, there is ample scope for confusion as to the proper applicant.  The present case is an example.  A perfectly natural reaction would be to think that the principal visa applicant would be able to complain about the rejection of the grant of a visa to that person.  However, the scheme of the statute and regulations is to permit only the sponsor to complain.

...

The purpose of s 479 is, like s 480, not to delineate the jurisdiction of the Court.  It is to be seen in conjunction with s 480.  Section 480 declares who are the parties to the application.  That provision leaves unanswered the question whether each of the parties is entitled to be an initiating party.  The function of s 479 is to specify that either the Minister or the applicant in the review by the relevant tribunal may be the initiating party.

...

The slightly more limiting mode of expression used in s 479 than in s 480 derives from the subject matter of s 479, rather than from any intention by parliament to have s 479 stipulate a limitation on the Court’s jurisdiction.

Thus, in my view, the present application is competent.  Upon lodgment of the application, s 480 operated to make the Minister and the applicant in the review the parties to the application.  The respondent was correctly described.  Reference to [the sponsor] as applicant was wrongly omitted when the application was lodged.  She was the only person who could be the applicant.  Mr Wickremasinghe should not have been recorded as the applicant.”

17                  In the course of argument in the present case, I expressed some concern about the correctness of Wickremasinghe, especially in the light of the words that now appear in s 477(2) (and that appeared in the Migration Act at the time of Wickremasinghe) “or which has the effect of allowing”.  Neither counsel in the present case was able to suggest a function those words were intended to perform without encompassing the substitution of an applicant with standing for an applicant lacking standing.  I am not able to think of such a function either.  Counsel for the Minister expressly disclaimed any submission that I should hold that Wickremasinghe was wrongly decided, however.  The Full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [13] referred to Wickremasinghe with apparent approval.  NABM itself concerned an application to the Court, filed after 2 October 2001, but in a form invoking Pt 8 of the Migration Act as it stood before that date.  The Full Court held that the jurisdiction of the Court had in substance been invoked, although not in form.  The Court had power to permit amendment of the application so as to make it clear that it invoked the jurisdiction given to the Court by s 39B of the Judiciary Act 1903 (Cth).  I therefore act on the assumption that I should follow Wickremasinghe, in the absence of argument that it is plainly wrong.  Instead, counsel for the Minister sought to argue that s 486C, which had no equivalent in the Migration Act at the time of Wickremasinghe, has made Wickremasinghe distinguishable from the present case.

18                  In the present case, as was the case in Wickremasinghe, the jurisdiction of the Court has been invoked with reference to a specific decision of the Tribunal, being its decision to affirm the decision of the delegate of the Minister, refusing to grant to Mr Basbas the visa he sought.  Following Wickremasinghe, the Court has power to amend the application, so as to ensure that it complies with ss 478 and 479 of the Migration Act, notwithstanding that the time limit specified in s 477(1) has expired.  The only question is whether s 486C imposes a jurisdictional requirement, which would prevent the Court from exercising its procedural powers.  In its terms, s 486C no more imposes a jurisdictional requirement than does s 478.  Section 486C has been recognised to be a provision relating to standing, rather than jurisdiction, intended to prevent collateral changes to decisions made under the Migration Act from being brought by people who are not the subject of those decisions.  See VHAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1243 at [48] – [53], cited with approval by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 at [86] – [90].  That the section is intended to apply to standing, as distinct from jurisdiction, is apparent from subs (3) of s 486C.  That subsection shows that s 486C applies on the assumption that the Court will have jurisdiction independently of the provisions of the section itself.  Subsection (5) does nothing to detract from this conclusion.

19                  I am therefore of the view that the jurisdiction of the Court pursuant to s 39B of the Judiciary Act 1903 (Cth) has been invoked by the filing of the application in this proceeding, referring specifically to the decision of the Tribunal refusing Mr Basbas a visa.  It is open to the Court to exercise its powers to control its procedure by causing the application to be amended, so as to show the correct applicant and the correct respondent.

20                  In one respect, however, s 486C does impose a constraint on the exercise of these procedural powers.  The words “or continue” in subs (1) make it clear that, although the jurisdiction of the Court has been properly invoked, someone who is not within the classes of persons who may commence or continue a proceeding cannot take a step that constitutes continuing the proceeding.  In the present case, that means that Ms Perkins cannot take the step of asking the Court to amend the application by substituting the name of Mr Basbas for her name.  That would be for her to continue the proceeding.  Her notice of motion seeking this order must be dismissed.

21                  The Court has power pursuant to O 13 r 2 to make the necessary amendment of its own motion.  The fact that this procedural power may be exercised to substitute the name of the correct applicant for the incorrect name means that the respondent’s notice of objection to competency must be dismissed.  The proceeding is not incompetent, because the jurisdiction of the Court is effectively invoked.  The Court of its own motion can remedy the defects in the title to the proceeding, so as to ensure that the jurisdiction is exercised effectively.  In the present case, the respondent will suffer no prejudice if the Court exercises that procedural power. 

22                  Accordingly, it is appropriate to dismiss both the objection to competency and the motion the subject of the notice of motion filed on 25 October 2002.  The Court of its own motion should order that the title to the proceeding be amended by substituting the name “Froilan Basbas” for the name “Maria Perkins” as the applicant and to substitute “Minister for Immigration and Multicultural and Indigenous Affairs” for “Department of Immigration and Multicultural Indigenous Affairs” as the name of the respondent.

23                  It would be possible to order that Ms Perkins pay the costs of her unsuccessful notice of motion, but to offset those costs against the costs of the unsuccessful notice of objection to competency.  Such an order would entail unnecessary complexity.  In the circumstances, it would be appropriate to make no order as to the costs of either notice, other than to reserve the costs of the day of 28 October 2002.

Associate:

Dated:              19 December 2002