Basbas v Minister for Immigration & Multicultural & Indigenous Affairs

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."