FEDERAL COURT OF AUSTRALIA Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1406 MIGRATION – application for review of temporary student visa – application lodged within 28 days of applicant being notified of decision – details of decision from which review sought incorrectly recorded on application – where Court ordered that any amended application be filed by date before hearing – where request for leave to amend application to refer to correct decision at hearing – whether application fails requirement of s 478 of Migration Act 1958 – whether Order 13 Rule 2 of Federal Court Rules empowers Court to accede to applicant's request Migration Act 1958 (Cth) s 478 Federal Court Rules Order 13 Rule 2 VINU KUPPAMMA KARPUSWAMY PILLAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 963 OF 2001 EMMETT J 22 AUGUST 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 963 OF 2001 BETWEEN: VINU KUPPAMMA KARPUSWAMY PILLAI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 22 AUGUST 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant have leave to file an amended application. 2. The hearing today be vacated and relisted for hearing on 2 November 2001. 3. The respondent file and serve a bundle of relevant documents by 19 September 2001. 4. The applicant file and serve any affidavit material on which he intends to rely on or before 10 October 2001. 5. The applicant file and serve an outline of written submissions five working days before the hearing date. 6. The respondent file and serve an outline of written submissions in reply two working days prior before the hearing date. 7. The applicant pay the respondent's costs of today. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 963 OF 2001 BETWEEN: VINU KUPPAMMA KARPUSWAMY PILLAI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 22 AUGUST 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 21 June 2001, an application for an order of review was filed in the Federal Court Registry. The applicant is Vinu Kuppamma Karpuswamy Pillai. The respondent is the Minister for Immigration and Multicultural Affairs ("the Minister"). The application contained the following: "Application to review the decision of the Migration Review Tribunal to refuse an application to remain permanently in Australia under a Student (Temporary) visa (Class TU) Subclass 560. The decision was made on 15 May 2001." 2 When the matter came before me on 27 July 2001, I made orders by consent as follows: 1. The applicant file and serve an amended application by 3 August 2001. 2. The respondent file and serve a bundle of relevant documents by 10 August 2001. 3. The applicant file and serve any affidavit material upon which he will rely on or before 17 August 2001. 4. The applicant file and serve an outline of written submissions five working days prior to the hearing date. 5. The respondent file and serve an outline of written submissions two working days prior to the hearing date. 6. The matter be listed for hearing at 10.15 am on 22 August 2001. 7. The time for filing any objection to competency be extended up to and including 10 August 2001. 8. Liberty to apply on 3 days notice." 3 No amended application was filed by 3 August 2001. On 17 August 2001, the Minister filed a notice of objection to competency on the ground that: "The application purports to seek review of decision of the Migration Review Tribunal, but no such decision has been made in relation to the applicant." 4 When the matter was called on for hearing today the solicitor for the applicant sought leave to file an amended application. That was not opposed, subject to the question of the Court's jurisdiction to entertain the amended application. The proposed amended application contains the following preamble: "Application to review the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse an application to enter and remain temporarily in Australia under a Student (Temporary) visa (Class TU) Subclass 560. The decision was made on 15 May, 2001." Different grounds are specified in the proposed amended application, although at present I do not think anything turns on that question. 5 Section 478 of the Migration Act 1958 (Cth) ("the Act") provides that an application under s 476 must be lodged with the Registry of the Federal Court within 28 days of the applicant being notified of the decision. It is common ground that the application both in its original form and in the proposed amended form would be an application under s 476 of the Act. The question is whether the amendment would be caught by s 478. 6 The solicitor for the Minister has drawn my attention to Order 13 Rule 2(3). That rule provides: "(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or (7) is made after any relevant period of limitation current at the date of the 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." 7 Rules 2(4), 2(5), 2(6) and 2(7) are concerned with circumstances where there has been a mistake in the name or identity of a party, a mistake in the name of a party, and an amendment to alter the capacity in which a party sues. Specifically, r 2(7) is concerned with: "An amendment [where] …the effect will be to add or substitute a new claim for relief or another foundation in law for a claim for relief if the new claim for relief or foundation in law for that claim arises out of the same facts or substantially the same facts of those already pleaded…" Rule 2(1) provides: "The Court may, at any stage of any proceeding …order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding… in such manner as the Court thinks fit." 8 It may be that there is some tension between r 2(3) on the one hand and s 478 of the Act on the other. However, I do not consider that r 2(3) has application in the present situation. 9 The original application refers to a decision of 15 May 2001 refusing an application for a Student (Temporary) visa (Class TU) Subclass 560. It is clear enough, in my view, that the original application was intended to refer to a decision made on 15 May 2001. A decision to refuse an application for a Student (Temporary) visa (Class TU) Subclass 560 was made on that day. The application in its present form contains a mistake in that it refers to the decision-maker as the Migration Review Tribunal ("the Tribunal") and it refers to the application as being one to remain permanently in Australia. 10 The application for review of that decision was lodged on 21 June 2001. I assume that that was within 28 days of the applicant having been notified of the decision. Accordingly, the application was lodged in accordance with s 478. I do not consider that granting leave to make the amendment proposed to correct those mistakes referred to would involve any contravention of s 478 or any avoidance of the effect of s 478. Accordingly, I will give leave to the applicant to file an amended application in the form that is now filed in Court. I certify that the preceding twelve (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 12 October 2001 Solicitors for the Applicant Simon Diab & Associates Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 22 August 2001 Date of Judgment: 22 August 2001