Basbas v Minister for Immigration & Multicultural & Indigenous Affairs

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. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.