CGA16 v Minister for Immigration

[2018] FCCA 2419

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2419

Catchwords:
MIGRATION – Litigation guardian – extension of time – protection visa.

Legislation:

Federal Circuit Court Rules 2004 (Cth). div.11.2 r.11.11

First Applicant: CGA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2191 of 2016

Judgment of: Judge Baird

Hearing dates: 11 April 2018

Date of Last Submission: 11 April 2018

Delivered at: Sydney

Delivered on: 11 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr T Galvin of Minter Ellison Lawyers

ORDERS

1. Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth), the Applicant’s daughter be appointed litigation guardian for the Applicant.

2. Pursuant to Rule 1.06 of the Rules, the requirements of each of:

   (a) Rule 11.11(2);

   (b)      Rule 11.13; and

   (c) Rule 11.15(1) in respect of all documents served in the proceeding up to and including 11 April 2018,

   be dispensed with.

3. The Applicant’s litigation guardian have the pseudonym CGA16(b) in all documents published relation to the proceeding.

4. Order 1 of these orders be confidential and suppressed on the Commonwealth Courts Portal.

5. This matter be adjourned for hearing, part heard, to 16 May 2018, at 11am.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2191 of 2016

CGA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. I have today appointed the Applicant’s daughter Litigation Guardian for Applicant.  My reasons briefly are as follows. 

2. At the commencement of this hearing today, I sought to explain to the Applicant what the role of this Court was on a judicial review proceeding, and I asked her to confirm whether she relied on the grounds in the “AMENDED APPLICATION” in place of the earlier filed application.  In attempting to respond, the Applicant appeared distressed and confused, and appeared to not to be capable of adequately responding to the Court’s questions, even as to identifying what grounds she now relied on.

3. Mr Galvin, the solicitor appearing for the first respondent, the Minister for Immigration and Border Protection, helpfully indicated that pursuant to div.11.2 of the Federal Circuit Court Rules 2004 (Cth) the Court may appoint a litigation guardian, and that he would not oppose such an order.  In those circumstances, I identified that the Applicant was accompanied today by her adult daughter who may be able to assist.  Whilst the Applicant’s daughter has indicated to me that she speaks limited English, she also indicated, through the assistance of an interpreter, and I accept, that she is willing and able to act as litigation guardian for the Applicant.

4. Having considered the Applicant’s demeanour, apparent deep confusion, and visible distress, I have formed the view that the Applicant needs a litigation guardian, and I so find. 

5. I find that the Applicant’s daughter satisfies the requirements of r.11.10 of the Rules, namely, that she is an adult, and has no interest in the proceeding adverse to the interest of the Applicant.  As I have said, the Applicant’s daughter has indicated that she is willing and able to act as that litigation guardian.

6. In the interests of minimising the documents that the litigation guardian would otherwise formally be required to provide, namely, an affidavit of consent, and the Applicant’s daughter having indicated that she understands her obligations, I will order that the requirement to provide that document be dispensed with.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 30 August 2018