Mahfoud v Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 443

GORGES MAHFOUD v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. G186 of 1993
FED No. 443
Immigration
(1993) 115 ALR 603
(1993) 43 FCR 217
(1993) 33 ALD 609

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beazley J(1)

CATCHWORDS

Immigration - appeal under s.138 Migration Act - extension of time to lodge amended application - power of court to permit amendment to plead a statute-barred cause of action - rule in Weldon v Neal - O.13, r.2 Federal Court Rules

Migration Act s.14(2A), s.138

Administrative Decisions (Judicial Review) Act

Federal Court Rules O.13, r.2(1)

Park Oh Ho and Ors. v Minister for Immigration and Ethnic Affairs 81 ALR 288

Weldon v. Neal (1887) 19 QBD 394

Bradshaw v. Hair Transplant Pty. Ltd. (1986) 13 FCR 1

Zoneff and Anor. v. Elcom Credit Union Limited (1990) ATPR 41-009

State of Western Australia v. Bond Corporation Holdings Ltd. and Ors. (1991) ATPR 41-095

Chan Yee Kin v. Minister for Immigration, Local Government and Ethnic Affairs and Anor. (1991) 103 ALR 499

Wardley Australia Ltd. and Anor. v. State of Western Australia (1992) 109 ALR 247

State of Western Australia v Wardley Australia Ltd. and Anor. 30 FCR 245

HEARING

SYDNEY, 21 May 1993

#DATE 5:7:1993

ORDER

The Court orders that:

I. The application to amend the application filed on 1 April 1993 be refused.

II. The applicant pay the respondent's costs.

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

JUDGE1

BEAZLEY J On 1 April 1993 Gorges Mahfoud commenced proceedings in this court by filing a document entitled "Application for an Order for Review". The document stated that it was an "Application to review the decision of a delegate of the Minister of for (sic) Immigration Local Government and Ethnic Affairs (the Minister) deeming the applicant an illegal entrant pursuant to subsection 14(2A) of the Migration Act, 1958 (the Act) by operation of Section 20 of the Act". The application alleged that the applicant was aggrieved by the decision because it required him to depart Australia. The grounds upon which the application were made were:

"A. A breach of the rules of natural justice ...; B. The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

C. The decision involved an error of law and an error of fact; D. There was no other material evidence to justify the making of the decision".

1. The relief claimed by the applicant was:
   

"1. An Order that the decision of the delegate of the Minister deeming the Applicant an illegal entrant be reviewed.

2. An Order that the Applicant be allowed to give and/or submit further evidence or other material in support.

3. Further and other Orders the Court finds necessary to review the decision."

1. The applicant and the respondent both accepted that the application purported to be an application brought under the provisions of the Administrative Decisions (Judicial Review) Act ("AD(JR) Act").

2. The application was supported by an affidavit of the applicant, in which he set out details of the circumstances of his entry into Australia as the holder of a "fiancee visa", the fact of changed circumstances shortly after his arrival, his application for a Permanent Entry Permit after Entry of which his wife was the sponsor, the breakdown of his marriage, the birth of his daughter Kareena, and the Family Court proceedings in respect of access to his daughter.

3. The Minister filed a notice of appearance on 19 April 1993.

4. The matter was first returnable before me on 6 May 1993. On that occasion, the solicitor for the Minister stated that the Minister might wish to file a notice of objection to competency. I directed that if this was to be done, such notice was to be filed by 11 May 1993.

5. On 10 May 1993, a notice of objection to competency was filed wherein the Minister objected to the jurisdiction of the court on the grounds that:
   

"No decision was made by a delegate of the respondent deeming the applicant an illegal entrant pursuant to subsection 14(2A) of the Migration Act 1958 (the Act) by operation of section 20 of the Act."

1. On that day directions were also made in relation to particulars and other procedural matters.

2. The matter was again returnable before me on 14 May 1993. On that occasion, counsel for the applicant informed the court that the applicant wished to file an amended application in the matter. I further adjourned the matter to 21 May 1993.

3. On 21 May 1993, a document entitled "On Appeal from the Immigration Review Tribunal" was filed in court. This document was in the following form:
   

"1. The Applicant appeals against the decision of the Immigration Review Tribunal the members thereof being ZITA ANTONIOS Presiding member and PATRICK JOHNSON A.M. member.

2. The decision of the said Tribunal was made on the 3 March, 1993.

3. (a) That the said Tribunal was in error at law in that the Tribunal in applying Migration Regulation 135(b) as amended and not at the date at which the application was lodged.

(b) That the said Tribunal was in error at law in finding that at the time the application was lodged there was not genuine and continuing marriage of the parties. And the applicant seeks the following orders: 4.(a) That the decision of the Immigration Review Tribunal be stayed.

(b) That this Honourable Court grant an extension in which to lodge such appeal upon the grounds set out in the affidavit of Carole Hilderbrandt (sic), Solicitor for the Applicant.

(c) Any other orders this Honourable Court deems appropriate."

1. The reference to Regulation 135(b) appears to be a typographical error. As at the time of the decision the regulations in force were the Migration Regulations 1993 which commenced on 1 February 1993 and do not contain a regulation 135. There is no evidence as to the decision which was made, and therefore I do not know to which provision of the Migration Regulations reference is intended to be made.

2. Ms. Hildebrand explained in her affidavit that the original "application was at fault" due to a misunderstanding of counsel. She stated that if an extension of time was not granted in which to file an amended application, the applicant would suffer an injustice but that no prejudice would be suffered by the respondent. The relief sought, to which Ms. Hildebrand refers in her affidavit, differs from the relief sought in the document filed in court, in that she refers to "an extension of time ... to file the amended application" (emphasis added) and not an extension of time in which to file an appeal, as sought in Order 4(b) of the filed document. The matter was argued before me on the basis that what was being sought was leave to amend the application and I have dealt with the matter on that basis.

3. There is no provision in the Migration Act for an extension of time within which to bring an appeal. What the applicant seeks to do here therefore, is to amend his original application, so as to convert what appears to be an application for review under the AD(JR) Act to an appeal under s.138 of the Migration Act.

4. The respondent argued that the application as originally filed could not stand as the applicant's case fell within s.138 of the Migration Act, and there was no power in the court to permit an amendment: (Weldon v. Neal (1887) 19 QBD 394; Bradshaw v. Hair Transplant Pty. Ltd. (1986) 13 FCR 1). Because of the limited argument which was put in the matter and the seriousness of the consequences to the applicant, I reserved my decision.

5. Subsequently, my Associate was contacted by Ms. Hildebrand who requested that the matter be re-listed for the purposes of further argument. Ms. Hildebrand was advised that rather than re-listing the matter, further submissions in writing could be made which should be served upon the Australian Government Solicitor who should have an opportunity to reply.

6. In the written submissions which were lodged on behalf of the applicant, it was argued that the power to amend the application was to be found under O.13, r.2(1) of the Federal Court Rules which provides:
   

"2(1) 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."

1. The respondent replied to these submissions by reiterating that there is no power to amend provided by the Federal Court of Australia Act 1976 or the Federal Court Rules nor is there any power to extend the time in which to lodge an appeal under the Migration Act.

2. The relevant provision of the Migration Act is s.138, which provides:
   

"138 (1) An appeal lies to the Federal Court, on a question of law, from any decision of the Tribunal made on a review under this Part.

(2) An appeal may be instituted by:

(a) the applicant for review by the Tribunal; or

(b) the Minister.

(3) An appeal shall be instituted within 28 days after the appellant is notified under section 135 of the decision concerned. ..."

1. The respondent relies upon the long standing rule of practice that an amendment is not permissible where it is sought thereby to plead a cause of action which is statute barred: Weldon v. Neal, where Lord Esher MR, at p 395 said:
   

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust."

1. Lord Esher then stated "Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so". The judgments of Lindley and Lopes LJJ also emphasise that the rule is one based upon ensuring that prejudice is not suffered by the opposite party.

2. The rule in Weldon v. Neal has been applied in this court notwithstanding the wide power of amendment provided by O.13, r.2. (Bradshaw v. Hair Transplant Pty. Ltd. (1986) 13 FCR 1 per Toohey J; Zoneff and Anor. v. Elcom Credit Union Limited (1990) ATPR 41-009; State of Western Australia v. Bond Corporation Holdings Ltd. and Ors. (1991) ATPR 41-095 per French J; Chan Yee Kin v. Minister for Immigration, Local Government and Ethnic Affairs and Anor. (1991) 103 ALR 499; Wardley Australia Ltd. and Anor. v. State of Western Australia 30 FCR 245 (FC Fed. Ct.); (1992) 109 ALR 247, (HC).

3. In Wardley the applicant had sought to amend its statement of claim under O.13, r.2 to introduce a cause of action which was barred by the provisions of s.82(2) of the Trade Practices Act 1976 which provides:
   

"(2) An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued."

1. The Full Court of the Federal Court found that the proposed cause of action was not statute barred and it was not necessary for the court to decide the question of whether O.13 could be used to overcome the effect of s. 82(2). Notwithstanding the court's finding that the cause of action proposed by the amendment was brought within the time prescribed by s.82(2), the Full Court, in considering whether the amendment might otherwise have been made under O.13, referred to the principle stated by E. Campbell, Rules of Court (1985) at 89-92 that:
   

"a rule-making power may not be relied upon as authorising variation of limitation periods prescribed by statute, except where the power to do so has been conferred by the legislature in express terms".

1. See Barraud and Abraham (Ltd) v Fitzherbert (1915) 34 NZLR 1098; Mitchell v Harris Engineering Co. Ltd (1967) 2 QB 703 at 720.

2. The High Court in Wardley also found that the action was commenced within time. However, Toohey J considered the Full Court's approach to the operation of O.13. His Honour stated at p 281:
   

"In the exercise of its jurisdiction, a court has powers expressly or impliedly conferred by the legislation governing it and "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred"."

1. (Parsons v. Martin (1984) 58 ALR 395 at 401; Jackson v. Sterling Industries Limited (1987) 162 CLR 612 at 630; Harris v. Caladine (1991) 172 CLR 84 at 136). His Honour said that once the Federal Court was seized of a matter under the Act its powers in respect of that matter are measured, not only by the Act itself but also by the Federal Court of Australia Act 1976 and by whatever is incidental and necessary to the exercise of that jurisdiction and to the exercise of any powers conferred by legislation. His Honour held, however, that what is "incidental and necessary" cannot override a clear prohibition such as appears in s.82(2) of the Trade Practices Act. Toohey J continued:
   

"When the Federal Court is faced with an application to amend a statement of claim by introducing allegations that, though they may relate to a time after the relevant limitation period has expired, do no more than expand a cause of action already pleaded, there is no difficulty in treating O.13, r.2 as wide enough to permit such an amendment. But when, as here, the proposed amendment introduces an admittedly new cause of action, the position is quite different. Section 82(2) presents a statutory barrier to any new cause of action; to this barrier, reference to express, implied or incidental powers provides no answer."

1. The cases to which I have referred were all cases involving common law and statutory civil claims. None of them deal with a statutory right of appeal against an administrative decision, and so far as I am aware there is no authority directly on point. It is possible to bring within the one application various applications for relief. (See Park Oh Ho and Ors. v Minister for Immigration and Ethnic Affairs 81 ALR 288.) In the present case, therefore, it would have been possible for the applicant to bring within the time prescribed by the relevant statutes, in the same application, an application for review under the AD(JR) Act, provided there was a relevant decision to review, and an appeal under s.138 of the Migration Act. Initially, Mr. Mahfoud brought only an application under the AD(JR) Act and that application was misconceived. He sought review of a decision which had never been made. There was not only this error, but by referring to a decision of a delegate of the Minister, the application failed to identify the correct decision-maker. The decision which has affected Mr. Mahfoud was made by the Immigration Review Tribunal. However, the affidavit filed in support of the original application is directed to the issue of the genuineness of the applicant's marriage and I infer this to be the factual substratum of the appeal under s. 138 which the applicant wishes to prosecute.

2. Notwithstanding that the factual circumstances upon which the applicant seeks to rely in the proposed appeal under s.138 of the Migration Act appear to be contained in the affidavit filed in support of the original application, I am of the opinion that the jurisdiction of the court which was invoked by the filing of the original application is quite independent of the jurisdiction which the applicant seeks to invoke by his amended application. The Migration Act specifies a time limit in which an appeal may be brought under s.138. In my opinion the Rules of the court cannot be relied upon to extend that time provision, and there is no other statutory provision which permits an extension of time. It follows that I do not consider that O.13, r.2 permits an amendment in this case.

3. Had an amendment been permissible, it would have been necessary to ascertain whether there was any prejudice to the Minister if the amendment was allowed. Presumably there would be some prejudice in that costs would have been thrown away in relation to the original application. That prejudice could have been dealt with by an order for costs. There may also be prejudice in the inability of the Minister to have his decision implemented given there was no appeal in the prescribed period, and possibly also in the interference with the orderly administration of the Department, having regard to the statutory regime Parliament has imposed by the Migration Act, including the time in which appeals may be brought.

4. If the rule of practice in Weldon v. Neal remains applicable notwithstanding the provisions of O.13, r.2, there are serious consequences for the individual involved, such that this matter may well have fallen within the exception of "very peculiar circumstances" referred to by Lord Esher. However, having regard to the view which I have reached in relation to the operation of O.13, it has not been necessary to determine these matters.

5. Accordingly, I refuse the application to amend.