Remely v Minister for Immigration
[2014] FCCA 428
•11 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REMELY v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 428 |
| Catchwords: MIGRATION – Applicant seeks to be party to partner’s migration matter – applicant seeks to run partner’s case – partner not a party – partner offered extension of time to file – applicant’s standing. |
| Legislation: Migration Act 1958 (Cth) Powers of Attorney Act 1988 (Qld) |
| SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602 |
| Applicant: | OTTO REMELY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 510 of 2013 |
| Judgment of: | Judge Coates |
| Hearing date: | 17 October 2013 |
| Date of Last Submission: | 17 October 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 11 March 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self -Represented |
| Solicitors for the Respondents: | Ms L. Kelly |
ORDERS
That the title of the proceeding be amended by deleting the description of the first respondent as the Minister for Immigration and Citizenship and inserting the description as the Minister for Immigration and Border Protection.
That the Application in a Case filed 7 August 2013 be dismissed.
That the Application in a Case filed 19 September 2013 be dismissed.
That the Application –Migration Act filed 28 May 2013 be dismissed.
That the Applicant pay the Respondent’s costs fixed in the amount of $4,636.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 510 of 2013
| OTTO REMELY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 26 April 2013 the Migration Review Tribunal affirmed a decision made by a delegate of the Minister for Immigration & Border Protection to refuse to grant a Partner (Temporary) (Class UK) Visa under s.65 of the Migration Act 1958 to Mr Arun Nepal.
Paragraph 3 of the decision by the Migration Review Tribunal states:
“The delegate refused the visa application on the basis that the applicant did not satisfy cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was not in a de facto relationship with the sponsor.”
Mr Nepal did not, and has never sought to have that decision reviewed by taking the required step of filing an application for review in this court.
On 28 May 2013 an application seeking to have the decision reviewed was filed in this court by Mr Otto Remely, who claims that he is Mr Nepal’s partner.
On the filing of such an application, the minister responsible for immigration matters and the Migration Review Tribunal become the proper respondents.
The applicant states in his affidavit material that he and Mr Nepal are de facto partners.
The respondents seek to have the application dismissed on the basis that the applicant has no standing under the Migration Act to bring or make the application.
At all times as I understood the submissions, the minister did not oppose Mr Nepal taking some step which would see that he properly becomes the applicant so that the Migration Review Tribunal decision could be reviewed upon a legal basis.
In fact, at the last appearance on Thursday 17 October 2013, the solicitor for the minister clearly stated that no issue would be taken if Mr Nepal filed an application out of time.
That the applicant has no standing has been an issue from an early time in this matter. By way of history I note an order of Judge Burnett dated 24 July 2013 that:
“1. That the application be adjourned pending an application being made by Mr Arun Nepal to be joined as a party to this application.
2. That any such application pursuant to Order 1 must be made on or before 4:00pm on 1 August 2013.”
The matter was then adjourned to 7 August 2013.
As I have stated, no application was made by Mr Nepal.
On 7 August 2013 the applicant filed an Application in a Case seeking:
“1. That the Visa applicant Mr Arun Nepal be joined as a party to the application. (This application is made under Federal Court and Federal Circuit Court Regulation 2012 reg.10.01(3)(f)).”
It was said on the face of the document that the Application in a Case was supported by an affidavit made by Mr Nepal.
It was also stated that it was supported by an affidavit by the applicant.
Both those affidavits were dated 31 July 2013.
The affidavit of Mr Nepal, the person the Migration Review Tribunal decision related to, simply states that he is the partner of the applicant, that they live in a unit, that he works as a picker on a local farm and that the “law requires that I become a party in application and I want to do that and I want Otto to speak for us both.” I note he states he wants to become a party, not an applicant.
The applicant in his affidavit states he is Mr Nepal’s sponsor, that they are deeply committed to each other and that he requests that Mr Nepal be joined as a party.
The applicant filed a further Application in a Case dated 19 September 2013 seeking to amend his original application to “Mr Otto Remely representing Mr Arun Nepal or in the alternative Mr. Arun Nepal applies in the person of his Power of attorney Mr. Otto Remely or in the alternative Mr Arun Nepal.”
That application also seeks a dismissal of an oral application by the first respondent, which seeks that Mr Remely’s application be dismissed summarily.
The oral application was made in the circumstances argued that the applicant has no standing to bring this application.
On 27 September 2013 the first respondent sought an amendment to the title of the proceedings substituting the new name for the minister responsible for migration, changed after the federal election from the Minister for Immigration, Multicultural Affairs and Citizenship to the Minister for Immigration and Border Protection.
There is no effective opposition to that, and so no question that such a change ought not be made because the first respondent, a proper and necessary party, exercises the same powers in relation to this matter under the previous name, being the Minister for Immigration, Multicultural Affairs and Citizenship, as is exercised now, under the name Minister for Immigration and Border Protection.
If that is described as a technical amendment such description is apt.
The applicant’s case for a change in title, and effectively the applicant, is of a very different nature.
For an unknown reason, and despite everything that has been said in court which would allow Mr Nepal personally to file an application, the applicant seeks to add Mr Nepal as a party.
The applicant now relies on the exercise of a power of attorney for Mr Nepal.
He submits that the power of attorney and the rules of this court allow for parties, such as Mr Nepal, to be joined to a proceeding.
As to parties being joined to a proceeding, such can only be done if such joinder is permitted at law.
The rules of the court allow for a necessary party to be joined, in order to determine a matter.
However, a matter such as this requires a willing person to file the relevant application, and to date, Mr Nepal appears to have been unwilling to file.
As to the submission that the applicant can rely on being Mr Nepal’s power of attorney, such argument is opposed by the first respondent.
I must say a certified copy of the power of attorney is not before the court, although the submissions of the first respondent, which were filed on 11 October 2013, refer to an original of the document being supplied to the court and to the first respondent.
I will accept that the first respondent has then seen such a document.
The applicant submitted that “The Visa applicant, Mr Nepal appointed his sponsor, Mr Remely as his attorney under the Powers of Attorney Act 1998 (Qld) specifically for the purpose: “To make decisions and do all things in relation to the migration matters and matters including legal proceedings arising thereof.”
The applicant’s submissions were many and varied, sometimes difficult to understand, and sometimes appearing to be moveable, but essentially his submission was that he can make legal decisions for Mr Nepal, based on the description of a legal matter in a schedule of the Powers of Attorney Act 1998 (Qld).
I will address the position he seeks to agitate under the Powers of Attorney Act, then address the position under the Migration Act, which has sections stating why may bring an application for review of a decision.
To understand his position, each particular statute and the relationship of the relevant sections have to be appreciated.
Section 8 of the Powers of Attorney Act states:
“Section 8. By a general power of attorney made under this Act, a person (principal) may —
(a) authorise 1 or more other persons (attorneys) to do for the principal anything (other than exercise power for a personal matter) that the principal can lawfully do by an attorney; and
Editor's note —
Only an attorney under an enduring power of attorney may exercise power for a personal matter for a principal.
(b) provide terms or information about exercising the power.”
It is under this section that Mr Nepal authorises the applicant to do what may lawfully be done.
The act is made up of sections and schedules, the schedules referring to contextual meanings of phrases and words referred to therein.
The applicant (finally) agrees with the submission of the first respondent that as he is appointed under a general power of attorney, he cannot exercise a power over a personal matter, such as a legal matter not relating to financial or property matters, for Mr Nepal, as defined in Schedule 2, ss.2(i) of the Powers of Attorney Act. That is because the exercise of that power can only be made under an enduring power of attorney.
However, in confusing written submissions, the applicant contends that he can exercise the power of bringing this proceeding on behalf of the principal, because s.69 of the Powers of Attorney Act allows him “…to do any other thing in the attorney’s own name.”
That section is under the heading ‘Exercising a Power For a Principal.’
It states:
“Section 69. Execution of instrument etc.
(1) If necessary or convenient for the exercise of power given to an attorney, the attorney may—
(a) execute an instrument with the attorney's own signature and, despite the fact that the power of attorney was given under hand, if sealing is required or used, with the attorney's own seal; and
(b) do any other thing in the attorney's own name.
(2) An instrument executed by an attorney must be executed in a way showing that the attorney executes it as attorney for the principal.
(3) An instrument executed, or thing done, in the way specified in this section is as effective as if executed or done by the principal—
(a) with the principal's signature; or
(b) with the principal's signature and seal; or
(c) in the principal's name.
(4) This section applies subject to the Property Law Act 1974, section 46.
Editor's note—
This section deals with the execution of documents by corporations.”
However, because of the wording of the Commonwealth Migration Act, this section of the Powers of Attorney Act does not, in my view, allow for signatures to be substituted on court process documents initiating action under the Migration Act. Nor do I view such documents as instruments like a will or deed or agreement or something of that nature. Apart from no necessity or convenience being demonstrated as required by the section, the applicant then relies on the dictionary meaning in the Powers of Attorney Act of the phrase ‘power for a matter’, which is described as a“… power to make all decisions about the matter and otherwise exercise the power” and then he links the term ‘legal matter’ to achieve his aim. Legal matter is described in Schedule 2, s.18, as:
“Schedule 2, section 18.A legal matter, for a principal, includes a matter relating to—
(a) use of legal services to obtain information about the principal's legal rights; and
(b) use of legal services to undertake a transaction; and
(c) use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and
Editor's note—
This enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person's estate if adequate provision is not made from the estate for the dependant's proper maintenance and support.
(d) bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding.”
The provisions can only be utilised if allowable under law, but there is no rational understanding of the words used in the Queensland Powers of Attorney Act or the Commonwealth Migration Act demonstrated by the applicant in propounding this argument.
He accepts that a general power of attorney does not authorise him to bring the proceeding, but he cannot simply then go to other sections of the Powers of Attorney Act which, on his argument, overcome the restrictions of s.8 which does not extend exercises of power to personal decisions.
Relevantly, s.486C of the Migration Act states who may bring the review application and s.8 of the Powers of Attorney Act cannot be read so as to extend the participants named in s.486C, to allow the applicant exercising attorney powers to bring this particular legal action on behalf of the principal, Mr Nepal.
The applicant cannot simply sidestep the restriction by relying on a mish-mash of other provisions and his interpretation of meanings to overcome the plainly stated powers available under s.8 of the Powers of Attorney Act.
If I am incorrect, even if the powers exist as stated by the applicant, there is the issue of whether an attorney exercising a power in a legal matter can do so for a person who otherwise is unwilling himself to bring a proceeding, given that s.8 authorises to be done only that which the principal can lawfully do.
It could not be a lawful act to engage in a legal matter when the principal would not have done so.
The sections, particularly s.8, reflect general concepts about the acts of attorneys wherein the authority given to them has always been construed strictly. Such power is exercised in a fiduciary capacity and does not extend to those personal acts, which by their nature, have to be performed personally.
Further as I have stated, an attorney cannot justify the exercise of a power which could be lawfully exercised by the principal, if the principal is unwilling to exercise that particular power or act in a particular way.
Apart from the difficulties set out under s.486C and s.479 of the Migration Act, I do not see how the applicant can avoid the operation of s.8 of the Powers of Attorney Act which, when read with the whole of the Powers of Attorney Act , do prevent him from bringing this legal action on behalf of his principal.
The applicant’s written submissions challenged the first respondent’s interpretation of the Powers of Attorney Act in this matter, but the first respondent’s submissions did not make a mistake as to the proper reference to provisions and how they ought to be interpreted.
However, even if the applicant correctly identifies his powers as an attorney on behalf of Mr Nepal in this matter, which in my view he does not, the Powers of Attorney Act does not overcome the bar to proceeding in this manner as identified in the Migration Act, and as identified by Gray J in Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602, which I will refer to shortly.
In the minister’s argument s.486C and s.479 of the Migration Act 1958 could not possibly allow the applicant to continue with this application, on the ground that he has no standing.
Section 486C states:
“Section 486C. Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court
(1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit Court or the Federal Court that raises an issue:
(a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, 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.
(3) This section applies to proceedings within the Federal Circuit Court's jurisdiction under section 476 of this Act, section 44 of the Judiciary Act 1903 , section 32AB of the Federal Court of Australia Act 1976 or any other law.
(3A) This section applies to proceedings transferred to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999 and proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c).
(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.
(6) However, subsection (5) does not apply to a provision of an Act if the provision:
(a) commences after this section commences; and
(b) specifically states that it applies despite this section.”
Section 479 states:
“Section 479. Parties to review
The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary, and:
(a) if the migration decision concerned is made on review under Part 5 or 7 or section 500--the applicant in the review by the relevant Tribunal; or
(b) in any other case--the person who is the subject of the migration decision; or
(c) in any case--a person prescribed by the regulations.”
It is incontrovertible that the applicant was not the party before the review by the Tribunal as defined by either of those sections. The party there was Mr Nepal. Section 486C(5) states that the section has effect despite any other laws, that is, the Commonwealth law prevails to the extent of inconsistency with a state act, as allowed under s.109 of The Constitution.
The applicant claimed to be a de facto partner but that is not the test as to standing applied by those sections of the Migration Act.
Pursuant to s.486C(1) he may not make an application to amend the title of the proceeding – such amendment on his application being to join Mr Nepal as a party.
The minister’s solicitor referred the court to Basbas v Minister for Immigration & Multicultural & Indigenous Affairs at 20 where Gray J stated:
“20. In one respect, however, s486C 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.”
I will note that if a person has no standing then the jurisdiction of the court is not properly invoked.
In the lengthy and diverse oral and written submissions, another of the applicant’s argument was that it would be unjust not to join Mr Nepal, but there is no provision in the Migration Act, nor in the rules of this court, which would allow joinder on such a ground. The relevant sections, s.486C and s.479, do not take into account considerations of justness.
That is despite the many and varied arguments the applicant expressed, too many to refer to here, but all amounting to his singular and immovable belief that he can make this application on behalf of Mr Nepal.
I then accept that the Power of Attorney he purports to exercise is incapable of rectifying the standing issue.
The minister’s solicitor further points out that the interlocutory applications are still filed in the applicant’s name and not in Mr Nepal’s name acting as his Power of Attorney.
Rule 13.10 of the Federal Circuit Court Rules 2001 refers to the dismissal powers that can be exercised by this court when a party has no reasonable prospect of success.
In my view, the applicant has no prospect of success because he does not have standing to bring this matter to court.
I will dismiss the Application in a Case filed 19 September 2013.
I raised with the parties where that leaves the original application and I accept that submissions that no case has been demonstrated showing that the applicant has standing to be before the court, so inevitably, his application filed 28 May 2013 has to be dismissed.
Costs were sought by the first respondent should the applicant be unsuccessful.
The minister seeks $4636 in costs, based on this court’s schedule, items 3 and 13A and three appearances.
A costs order is warranted in this matter.
Throughout the proceeding the applicant has been notified of the first respondent’s argument was that he had no standing.
Be that as it may, it has been clearly put on two occasions before me that there would be no objection to Mr Nepal taking the necessary steps to file an application in his own name (as he has standing) to prosecute his case in light of the Migration Review Tribunal decision. The applicant understood that because he asked the first respondent’s solicitor for confirmation, twice.
The first respondent’s position about not opposing an application out of time was stated in plain language.
I will make a costs order in the sum of $4,636.
Finally, I need to say that the applicant was not represented, and even though I heard the case before the decision was delivered by the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, a case which made it clear that the court has an overriding duty to ensure proceedings are fair, I attempted to understand the applicant’s case and gave him time to prepare his case.
On hearing complaint that he never received the first respondent’s submissions, I ensured he had a copy and had time to read them. An affidavit of service of the documents was provided by the first respondent.
Further, it was made clear by Judge Burnett, and in the orders he made on 24 July 2013, that a new application could be filed by Mr Arun Nepal, and such had to be filed before 4.00pm in 1 August 2013.
No such application has been filed by Mr Nepal. I do not know whether the applicant here is being obstinate or whether Mr Nepal simply does not want to make an application.
As the applicant complained of being infirm, I allowed him to appear from Bundaberg by telephone and I ensured that Mr Nepal was present with him and could hear the case. I had confirmation by Mr Nepal of his presence.
I am satisfied that Mr Nepal understands that he was given ample opportunity to make the application which Judge Burnett adjourned the case for.
Procedural fairness has been extended to the applicant and to a possible party, Mr Nepal.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 11.03.2014
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