Wickremasinghe v Minister for Immigration & Multicultural Affairs
[1998] FCA 324
•13 MARCH 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION - Review of decision of Immigration Review Tribunal not to grant Subclass 105 (Concessional Family) visa - The Act allowed only sponsor to seek judicial review - Application for review wrongly commenced by principal visa applicant - Whether application is competent - Whether failure to correctly name applicant is a jurisdictional or procedural matter - Whether sponsor can be substituted as applicant after application for judicial review commenced by person without standing
Migration Act 1958 (Cth) ss 339(2)(b), 347(2)(b), 475, 476, 479, 480
Yong Jun Qin v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 695, applied
Zhen Gang Liu v Minister for Immigration and Multicultural Affairs (Federal Court, 18 March 1997, unreported), applied
WICKREMASINGHE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO VG 139 OF 1997
JUDGE: NORTH J
PLACE: MELBOURNE
DATE: 13 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 139 of 1997
BETWEEN
SHAMMI KUMAR WICKREMASINGHE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE(S):
NORTH J
DATE OF ORDER:
13 MARCH 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The respondent’s objection to the competency of the review is dismissed.
The documents filed in this application are amended by deleting the references to Shammi Kumar Wickremasinghe as applicant and replacing such references with references to Mary Suresha Kumaraperu as applicant.
The respondent pay the applicant’s costs of this application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 139 of 1997
BETWEEN
SHAMMI KUMAR WICKREMASINGHE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE(S):
NORTH J
DATE:
13 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 27 June 1997, Mr Wickremasinghe filed an application in this Court for review of a decision of the Immigration Review Tribunal made on 2 June 1997, refusing to grant him a Subclass 105 (Concessional Family) visa.
It is common ground that the proper applicant for a review in this Court is Mary Suresha Kumaraperu, the sister of Mr Wickremasinghe. The question is whether the application, having been commenced by the wrong person, is competent and whether Mrs Kumaraperu can be substituted as applicant.
It is a requirement for the grant of a Subclass 105 (Concessional Family) visa that the applicant for the visa, called the principal, has a specified relative as a sponsor. The initial application in the present case, by Mr Wickremasinghe as principal and his sister, Mrs Kumaraperu, as the sponsor, was rejected by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs. Mrs Kumaraperu, as sponsor of her brother, applied for internal review of the decision. As sponsor, she was the only person permitted by the Migration Act 1958 (Cth) (the Act) to seek the review (s 339(2)(b)). The review officer affirmed the original decision. Mrs Kumaraperu then sought a review by the Immigration Review Tribunal. Again, she was the only person entitled to seek such a review (s 347(2)(b)). On 2 June 1997, the Immigration Review Tribunal affirmed the decision to refuse the visa application. Within 28 days, on 27 June 1997, Mr Wickremasinghe and not Mrs Kumaraperu lodged the present application for review of the decision of the Immigration Review Tribunal.
On 11 November 1997, the solicitor for the respondent advised the solicitors for the applicant that he thought the application was incompetent. On 12 November 1997, the applicant filed a notice of motion seeking to substitute Mrs Kumaraperu as applicant. On 17 November 1997, the respondent filed a notice of objection to competency on the basis that the application was not brought by a party competent to bring it.
STATUTORY CONTEXT
The following provisions of the Act are relevant to the issues in this case:
“475. (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a) decisions of the Immigration Review Tribunal ....
......
476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b)that the person who purported to make the decision did not have jurisdiction to make the decision;
(c)that the decision was not authorised by this Act or the regulations;
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f)that the decision was induced or affected by fraud or by actual bias;
(g)that there was no evidence or other material to justify the making of the decision.
......
478. (1) An application under section 476 or 477 must:
(a)be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.
(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).
479. An application under section 476 or 477 may only be made by:
(a)if the judicially-reviewable decision is covered by paragraph 475(1)(a) or (b) - the Minister or the applicant in the review by the relevant Tribunal ....
480. The parties to the review of a judicially-reviewable decision are the Minister and:
(a)if the judicially-reviewable decision is covered by paragraph 475(1)(a) or (b) - the applicant in the review by the relevant Tribunal”.
The respondent’s submissions are summarised in his outline of argument, as follows:
“6.The applicant in the present proceedings is not a person permitted by this paragraph [s 479(a)] to bring an Application for an Order to Review before this Court. Accordingly the present proceedings are incompetent and the respondent submits that his Notice of Objection to Competency ought to be upheld.
7.There being no competent proceedings before this court in respect of the IRT’s decision, there is accordingly no basis on which the applicant’s Notice of Motion may be heard, and moreover, the applicant, not being a valid party to any such proceedings, has no right to bring such a Motion to this Court.
8.More fundamentally however, it is no longer possible for any application to be brought to this court in respect of the IRT’s decision, since the only two persons who could have bought [sic] such an application (the Minister and Mrs Kumaraperu) did not do so within 28 days of being notified of the decision. Both parties are therefore forever prevented from now bringing such an application by virtue of the provisions of Section 478 of the Act ....”
The applicant relied on Yong Jun Qin v Minister (1997) 144 ALR 695, which concerned an application for judicial review of a decision of the Immigration Review Tribunal. The applicant wrongly named the Tribunal as respondent instead of the Minister. The respondent contended that the Court had no jurisdiction in the matter and, therefore, did not have power under the Rules of Court to allow an amendment of the application to substitute the Minister as respondent. The Full Court rejected this argument and said, at 705:
“But we cannot accept that there was any absence of jurisdiction here. Rather, in our view, the issue in question was purely procedural and lay within the competence of this court to deal with. With all respect to those who have held otherwise, we are of the opinion that the approach adopted by Davies J in Liu was correct.”
Davies J, in Zhen Gang Liu v Minister for Immigration and Multicultural Affairs (Federal Court, 18 March 1997, unreported) said:
“Compliance with s 478(1)(b) is mandatory, for s 478(2) so provides; but that does not mean to say that every relevant provision of the Federal Court Rules must be strictly complied with. The Rules themselves provide for dispensation from compliance and for amendment.”
and:
“In the circumstances of the case, I have no doubt that there was substantial compliance with the procedural requirements. The application was, on its face, an application seeking a review by the Federal Court of a decision of the Immigration Review Tribunal, which decision was annexed to the application. The application specified, not in legal terms, but at least in general terms, the reasons why the applicant sought review of the decision. There was only one fault with the document, ie, that the name of the respondent was not included.
This is a defect which the court can remedy, for s 480(1) of the Migration Act specifies who the parties to the application are. As the Rules provide that, 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, I consider that this Court may insert the name of the party specified by s 480 of the Migration Act, the applicant having been unaware of the name of the respondent.
I assume that the respondent was unaware that the Minister of Immigration & Multicultural Affairs must be a party to the proceedings for that name was omitted from the application. It is understandable that this was so, for this was not an ordinary lis inter partes, in the sense of a dispute between two persons. ....
In my opinion, the omission of the name of the Minister did not invalidate the application which, on its face, was an application seeking review by the Court of a judicially-reviewable decision and which was directed to and served upon the Minister’s solicitor, the Australian Government Solicitor.”
In Yong Jun Qin, the Full Court said, at 706-707:
“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.
In our view, the language of Div 2 of Pt 8 makes it clear that the ‘matter’ in respect of which the court is invested with jurisdiction is, relevantly, an application under s 476, pursuant to s 475(1), to review the decision of the tribunal. The court is seized of that matter upon the filing of an application applying for review of that decision. The same act does not deprive the court of its jurisdiction, by reason of any failure to identify or name a party correctly: cf Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212 at 219; 76 ALR 173. This is an area which is governed by the court’s procedures, to be applied in the context of the provisions of s 480. As Davies J observed, what an applicant is seeking is review by the court of the tribunal’s decision. Section 480 requires the minister to be a party, but no part of an applicant’s claim concerns an act or omission of the minister.
In our view, the evident purpose of s 480 is, first, to make it unnecessary for the decision-maker (the tribunal) to appear (cf R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; 29 ALR 289); and, secondly, to avoid the need for the minister to apply to be joined as a party to the judicial review proceedings. But, significantly for present purposes, there is nothing that we can find in the language or evident intent of s 480 to suggest that a failure to name the minister as respondent will have the effect of depriving the court entirely of jurisdiction in the proceedings. Section 480 does no more than remove any doubts as to the identity of the proper parties to the proceedings by declaring who those parties are, subject to any intervention by the Attorney-General under s 484. Section 480 is declaratory of the position as to parties and it operates upon an existing claim before the court. Such a claim is under the court’s jurisdiction if it is within s 475, 476 or 477. Section 480 does not purport to oust that jurisdiction or create it but to shape what shall be one of its incidents. Nor is it framed as an imperative requirement to reflect that incident in the form of the initiating document lodged with the court: cf Clayton v Heffron (1960) 105 CLR 214 at 247.
Support for our construction of s 480 may be found by contrasting the language used in other provisions of Div 2 of Pt 8 where an intention to confine the jurisdiction or powers of the court may be discerned. For instance, as has been seen, s 478(1) provides that an application ‘must’ be made in a particular manner and lodged within a specified time. (The prescribed manner is as specified in the court’s rules, which, it may be noted, make provision for amendments, where they are actually necessary for the determination of the real issues.) By s 478(2) it is provided that the court ‘must not’ make certain orders (not here material). By s 485(1), it is provided that the court ‘does not have jurisdiction’ in respect of certain decisions (not here material). On the other hand, the different language of s 480 merely provides that the parties to the review are the minister and the other persons specified. It is not there suggested that a failure to name the minister in the application has any particular consequences. That question is not addressed by s 480 to any extent. Jurisdiction of the court is not mentioned in s 480. In our opinion, the naming of the minister is not a jurisdictional fact upon the existence of which will depend whether the court has jurisdiction.”
The respondent did not contend that Yong Jun Qin was wrongly decided. Rather, he contended that s 479 was, unlike s 480, jurisdictional, not procedural. I do not agree. The following propositions emerge from the passage at 706 in Yong Jun Qin:
The failure to properly name a respondent is a subject likely to be dealt with in the statute as a question of procedure, rather than jurisdiction.
The jurisdiction which is given to the Court is conferred by s 475(1) and s 476, and is a jurisdiction to review a decision of the Tribunal.
One purpose of s 480 is to declare who are the parties to an application, and the section operates on an existing claim before it.
In contrast to the wording of other sections in Div 2 of Pt 8, the wording of s 480 is not directed to the limiting of the jurisdiction of the Court.
These conclusions assist in determining the present case.
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 determination in Yong Jun Qin that the jurisdiction is conferred on the Court by ss 475 determinative against the respondent on the present question. The Court’s powers are activated by the lodging of a document which states that a specified decision is under challenge and seeks a review of the decision. There is no doubt that such a document was lodged in the present case. It commenced as follows:
“APPLICATION to review a decision made by Mr Joseph Italiano, a Member constituting the Immigration Review Tribunal (‘IRT’), to affirm the primary decision of 11 March 1996 refusing to grant a Subclass 105 (Concessional Family) visa to the applicant, being a decision made by the IRT on 2 June 1997.”
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.
Finally, the wording of s 479 is closer to the style of s 480 than the contrasting style of s 478(1) and (2) and s 485(1) referred to in Yong Jun Qin. 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 Mrs Kumaraperu 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. Order 13 r 2(1) of the Rules of the Federal Court provides:
“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.”
The respondent was concerned to argue the jurisdictional issue but did not seek to put any arguments against the exercise of discretion under the Rules in favour of the amendment. Pursuant to this rule, I will order that the documents filed in the application are amended by deleting the references to Shammi Kumar Wikremasinghe as applicant and replacing such references with references to Mary Suresha Kumaraperu as applicant. Mr Hurley, who appeared as counsel for Mr Wickremasinghe, was also instructed by Mrs Kumaraperu that she consented to such amendments. There will also be an order that the respondent pay the applicant’s costs of this application. The parties should now confer as to the appropriate directions to progress the matter to a hearing. If necessary, the parties should contact my associate to arrange for the fixing of a date for a further directions hearing.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North
Associate:
Dated: 13 March 1998
Counsel for the Applicant: Mr T Hurley Solicitor for the Applicant: Barlow & Co Counsel for the Respondent: Mr C Rawson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 February 1998 Date of Judgment: 13 March 1998
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