Chien v Minister for Immigration
[2013] FCCA 218
•7 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHIEN v MINISTER FOR IMMIGRATION | [2013] FCCA 218 |
| Catchwords: PRACTICE AND PROCEDURE – Joinder of parties – whether child should be joined to proceedings – where proceedings commenced by child’s father on his own behalf – where no evidence of child’s capacity to make decision now under challenge – child joined – litigation guardian to be appointed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 Family Law Act 1975, ss.70G, 70H, Part VII, Federal Circuit Court Rules 2001, rr.11.01, 11.01(1), 11.08(2) Federal Court Rules 2011, O 6 r.8(1)(b) Migration Act 1958, ss.189, 196 |
| Cases cited: Chen v Tan [2012] FamCA 225 Gillick v West Norfold A.H.A. [1986] A.C. 112 Milne v Minister for Immigration [2009] FMCA 462 Minister for Immigration and Multicultural Affairs v Perth City Mission [1999] FCA 670 News Ltd v The Australian Rugby Football League Ltd (1996) 64 FCR 410 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Proud v Proud [2012] WASC 134 Re: Woolley and Another; Ex Parte Applicants M276/2003 (2005) 225 CLR 1 Secretary, Department of Health and Community Services v. J.W.B and S.M.B (1992) 175 CLR 218 Schwartz v Bentwood [2002] NSWSC 1020 Thurgood v Director of Australian Legal Aid Office (1984) 9 Fam LR 916 Wayne & Dillon and Anor [2008] FamCAFC 204 Yang & Chin [2012] FamCA 436 Yang & Chin [2011] FamCA 703 |
| Applicant: | HO-YUAN CHIEN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | BRG 150 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 26 July 2012 |
| Date of Last Submission: | 26 July 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 7 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mathews |
| Solicitors for the Applicant: | Lang Hemming & Hall |
| Counsel for the Respondent: | Mr McGlade |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The oral application for an order that orders 1 and 2 of the orders of 3 May, 2012 be discharged is dismissed.
The applicant pay the respondent’s costs of and incidental to the application in a sum to be agreed between the parties, and failing agreement to be fixed by the Court on the next court date.
The application be listed for directions at 9.30am on 20 May 2013 in the Federal Circuit Court of Australia sitting in Brisbane.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 150 of 2012
| HO-YUAN CHIEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The applicant, Mr Ho-Yuan Chien is a Taiwanese national and the father of Sheng-Yen Chien (“Joseph”) who is both a Taiwanese and Australian citizen. Joseph is nine years of age.
On 5 August, 2010 Joseph was conferred with Australian citizenship following an application made by his mother for the conferral of citizenship on herself and Joseph.
By his principal application filed on 30 November, 2011 Mr Chien seeks that the Court review the decision of the Minister for Immigration and Citizenship to confer Australian citizenship on Joseph on the ground (among others) that it was induced by fraud. In short, Mr Chien alleges that Joseph’s mother misrepresented to the Minister that Joseph was living in Australia at the time the Australian citizenship application was made. The application was commenced by Mr Chien in his own right, not in any representative capacity on behalf of Joseph.
The application was initially filed in the Federal Court of Australia, but by an order of a Federal Court judge, it was transferred to this court.
At a directions hearing on 3 May, 2012 I ordered that:
1. The child SHENG-YEN CHIEN (born 7 February 2004) be joined as a party to these proceedings.
2. The parties agree on a litigation guardian for the child and failing agreement that a request issue to the Attorney General for the Commonwealth of Australia for the appointment of a litigation guardian for the child SHENG-YEN CHIEN (born 7 February 2004).
3. The applicant serve all material filed by both the applicant and respondent upon the mother of the child.
4. This matter be adjourned for further directions to 9.30am on 13 June 2012 in the Federal Magistrates Court of Australia at Brisbane.
5. The costs of today be reserved.
At a further directions hearing on 13 June, 2012 Counsel for the applicant orally applied for an order that orders 1 and 2 of the orders of 3 May, 2012 be discharged. He submitted that there had been a material change in circumstances following the directions set out above by virtue of which such an order was appropriate. The matter was adjourned to 26 July, 2012 for submissions.
Background
To understand the context in which Mr Chien now agitates this application, some background facts are necessary. The facts appear sufficiently from the judgment of Bell J in Yang & Chin [2011] FamCA 703 as follows:
4. The parties were married in November 1997 in Tawain. The parties and the subject child were born in Taiwan and immigrated to Australia when the child was 18 months old in 2008. …
5. The Wife and subject child were granted Australian citizenship in September 2010. The Wife submits the Husband consented to this application, but the Husband asserts the application was a unilateral decision of the Wife…
6. The subject child is now 7 years old and has resided with the Husband in Taiwan since June 2010. …
7. Proceedings in Taiwan were commenced by way of “Divorce Settlement Agreement” on 21 September 2009….For the purposes of this Application it is common ground that the Divorce Agreement bestowed the rights and duties with regard to the child upon the Husband. However, the translation provided by the Husband, annexed to the affidavit of a Mr Y filed 10 November 2010, states “the Male Party …shall be solely responsible for exercising the rights and assuming the duty in regard to their minor child …” (emphasis added). The Wife’s translator disputes the inclusion of the word “solely”.
…
8. Under clause 5 of the Agreement it was agreed that “the Male Party …shall be solely responsible for exercising the rights and assuming the duty in regard to their minor child…”, and further it appears that the agreement is binding between the parties according to s 1 of article 1055 in the Taiwan Civil Code which provides that:
“After the Husband and Wife effect a divorce, one party or both parties of the parents will exercise the rights or assume the duties with regard to the minor child ….”
Joseph’s mother applied to the Taiwan Taipei Family District Court in July, 2010 challenging the validity of the Divorce Settlement Agreement. She also commenced proceedings in Taiwan seeking orders that she exercise rights or assume duties alone in regard to Joseph.
By and by the parties mediated their dispute about Joseph’s care arrangements and in August, 2010 an agreement was reached between them. That agreement appears to have been “affirmed” by the Taiwanese court in September, 2010. However, at the hearing of Joseph’s mother’s application to challenge the Divorce Settlement Agreement, which took place over a period spanning November 2010 – May 2011, she sought variations to the mediated and approved agreement with respect to Joseph’s care.
Final Judgment and reasons for decision were given in Taipei in
June, 2011. Bell J summarises the orders made as follows:
1. Civil Application for the Final Order to Change the Custodian concerning the minor child [J] born […] February 2004 is hereby dismissed.
2. The Applicant may visit, communicate and live with the minor child [J] born […] February 2004 in the designated time as the attached schedule.
3. The Applicant mother is restrained from taking the minor child [J] or requesting any person from taking the child [J] from the territory of the Republic of China without the prior consent of the Respondent father, and the minor child [J] is restrained from leaving the territory of the Republic of China without the prior consent of the Respondent father either.
In the midst of the proceedings in Taiwan, in August, 2010 Joseph’s mother commenced proceedings in the Federal Magistrates Court. It seems that those proceedings were transferred to the Family Court of Australia. In those proceedings, Joseph’s mother sought parenting orders which were inconsistent and different to the terms agreed between the parties in the Divorce Settlement Agreement.
In December, 2010 O’Reilly J, on Mr Chien’s application, granted a stay of the Australian proceedings, pending the finalisation of the Taiwanese proceedings.
Joseph’s mother commenced an interim application for parenting orders concerning Joseph in June, 2011. That application was heard and determined by Bell J (Yang & Chin [2011] FamCA 703). By his Honour’s orders delivered on 2 September, 2011, Joseph’s mother’s interim application was stayed.
Although Bell J’s judgment and orders dealt with Joseph’s mother’s interim application, her principal application for parenting orders in respect of Joseph remained unresolved. And so remained the position when the present application came before me on 3 May, 2012.
The change in circumstances relied upon by the applicant which requires the directions made on 3 May, 2012 to be revisited is that Bell J has now disposed of Joseph’s mother’s principal application by, on 23 May 2012, ordering that it be permanently stayed (Yang & Chin [2012] FamCA 436).
Order 1 - Joinder
Rule 11.01 of the Federal Circuit Court Rules 2001 provides that: “…a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding”. The word necessary in this context has been taken to mean something more than “useful” or “expeditious”: Wayne & Dillon and Anor [2008] FamCAFC 204.
Counsel for the applicant primarily submitted that Joseph is not a necessary party to the proceedings because Bell J’s decision confirmed that the court orders, or the Divorce Settlement Agreement, made in Taiwan between Joseph’s mother and father finally determined all parenting matters in dispute between them. The Taiwanese orders, it was argued, conferred on Mr Chien the equivalent of sole parental responsibility and gave him the power to act and make immigration decisions on Joseph’s behalf. Accordingly, it was not necessary that Joseph be a party to these proceedings.
The respondent relied predominantly on News Ltd v The Australian Rugby Football League Ltd (1996) 64 FCR 410 to support the submission that Joseph must be joined as a party in the proceedings as his rights will be directly affected by a final determination of the matter.
Consideration
For the purposes of these proceedings, I will assume that the terms of the orders of the Taiwanese court, or the Divorce Settlement Agreement, confer upon Mr Chien what would be regarded in Australian law as sole parental responsibility.
In considering the necessity to join a third party in proceedings Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (at 55), held that a flexible approach is appropriate and that the purpose of the rules in relation to joinder are:
“…to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard.”
That reasoning was supported in News Ltd (above) where Lockhardt, von Doussa and Sackville JJ said (at 525):
“The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected.”
Therefore the questions that one must ask when considering whether it is necessary to join a party to a proceeding are:
a)taking into account the orders sought, are the rights and liabilities of a third party likely to be directly affected by a decision in the matter; and
b)what is the nature and value of the rights that are likely to be affected; and
c)are there any practical reasons as to why joinder may be seen to be inappropriate.
Once this test has been applied, if it is found that a third person’s rights are likely to be directly affected by a decision, orders should not be made unless that person is joined as a party: News Ltd (above) at 524.
The test in News Ltd was applied in the migration context in Minister for Immigration and Multicultural Affairs v Perth City Mission [1999] FCA 670. That case involved an application to the Federal Court to review the decision of the Administrative Appeals Tribunal where the sponsors of the applicants for citizenship were named as the applicants in the proceedings but the couple seeking the grant of a family visa were not. Ultimately, it was found that it was necessary for the applicants for citizenship to be joined as a decision of the Tribunal would directly affect their rights (Perth City Mission (above) at 12).
Although both News Ltd and Perth City Mission concern the application of O 6 r.8(1)(b) of the Federal Court Rules (as they were then formulated) that rule is analogous, although not identical, with r.11.01(1) of the Federal Circuit Court Rules2001. The most significant difference between the two rules is that the former confers a discretion on the Court to join, whereas the latter does not. Once the Court comes to the conclusion that the person sought to be joined is “a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding”, that person “must be included as a party in the proceeding”: FCCR r.11.01(1)
Having regard to the test set out above, prima facie, it is necessary to join Joseph as a party to these proceedings. Mr Chien ultimately seeks that the conferral of Australian citizenship on Joseph be revoked. That involves a direct interference with the rights that he presently enjoys as a citizen of this country. True it is that given his age Joseph might not seek to exercise those rights for some time, but that is not to the point. The rights and entitlements that flow from citizenship are now, and will be, available to him whilst soever he remains an Australian citizen.
The applicant pointed to Chen v Tan [2012] FamCA 225 to support the argument that dual citizenship may have what might be perceived to be disadvantages. While this case does highlight certain possible ramifications for dual citizenship, it is not to the point. The determination of this application does not turn upon the advantages and disadvantages to Joseph of his Australian citizenship. Joseph’s existing rights and liabilities may be affected by the outcome of this application.
Mr Chien argues that Joseph is not a necessary party to the proceeding and submits that Secretary, Department of Health and Community Services v. J.W.B and S.M.B (1992) 175 CLR 218 (Marion’s Case) supports the submission that Mr Chien, as Joseph’s father and sole guardian, is the only person who has the ability to make decisions and bring these proceedings on his behalf.
In Marion’s Case the applicant parents sought authorisation from the Court for a sterilisation procedure to be carried out on their fourteen year old daughter. The child the subject of the proceedings had significant mental incapacities and medical practitioners recommended the procedure but would not complete it without leave of the Court. The child in that matter was not joined as a party in the proceeding.
The majority (Mason CJ, Dawson, Toohey and Gaudron JJ) determined, at p.232, that the relevant questions to be answered were:
a)whether a child, intellectually disabled or not, is capable, in law or in fact, of consenting to medical treatment on his or her own behalf; and
b)where a child is incapable of consenting, whether elective sterilization is a matter that is outside the scope of a parent to consent on behalf of his or her child.
In relation to the first question, the majority found that the age of majority alone is not determinative of a minor’s ability to provide consent (at p.238). In this regard they endorsed the approach in Gillick v West Norfold A.H.A. [1986] A.C. 112 where Lord Scarman found (at p.189) that a minor is able to provide informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.
In relation to the second question the majority found (at p.240) that, “ordinarily a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child”. However, this was qualified with the proposition (at p.240) that, “the overriding criterion of the child’s best interests is itself a limit on parental power”. Ultimately, it was found that the elective sterilization of minors falls outside of the ordinary scope of parental powers and Court authorisation is necessary regardless of the capacity of the child or whether it is in the child’s best interests.
However, Marion’s Case is of limited relevance to the matter at hand. Marion’s Case concerned the medical treatment of a child that would never possess the level of understanding required to make an informed decision. The application before the Court in that case was an application either pursuant to the jurisdiction conferred in Part VII of the Family Law Act1975, or an application of the parens patriae jurisdiction of the Court.
Experience shows that in such applications, either under Part VII of the Family Law Act 1975 or in the parens patriae jurisdiction of a superior court, the children the subject of such applications are rarely, if ever, parties to those proceedings, although the proceedings necessarily directly affect their interests.
Other proceedings brought to enforce the civil rights or entitlements of a child are commenced by the child in his or her own name through a litigation guardian. Modern practice demonstrates that proceedings concerning children, such as actions for damages for injury to a child, are pursued by the child with a litigation guardian. The child’s parents are not proper parties and have no standing to bring such proceedings in the stead of the child. Similarly, minors will be joined to proceedings where other rights and entitlements might be affected by the outcome of the proceedings: Schwartz v Bentwood [2002] NSWSC 1020 (interest as beneficiary under an inter vivos trust); Proud v Proud [2012] WASC 134 (potential interest as a beneficiary under a will).
Mr Chien also relies on Re: Woolley and Another; Ex Parte Applicants M276/2003 (2004) 225 CLR 1 to support the proposition that given that he has sole parental responsibility for Joseph, only he can make the relevant decisions concerning Joseph’s citizenship and Joseph is therefore not a necessary party to the proceedings. Mr Chien argues that Re Woolley supports the proposition that:
a)children are considered incompetent at law;
b)parents of children have the capacity to act on the child’s behalf; and
c)decisions relating to immigration of a child are vested in the parent or guardian of the child.
The applicants in Re: Woolley were four Afghani children held in immigration detention in Australia. They challenged the constitutional validity of the laws under which they were so held. Their constitutional challenge failed.
In the course of his judgment in that case, McHugh J had cause to consider the legal capacity of children to make decisions on their own behalf. His Honour’s consideration of that matter arose in the context of considering whether the impugned laws (ss.189 and 196 of the Migration Act 1958) were reasonably necessary for the achievement of a non-punitive purpose to which they were directed. If they were not and they represented an unnecessary punitive measure, they would be an impermissible conferral of the judicial power of the Commonwealth upon the Executive. In determining whether the impugned laws were punitive, it was argued for the applicants that, in the case of children, the detention authorised by the laws in question was punitive because as children they lacked the legal capacity to bring about the end of their detention by requesting removal from Australia.
Mr Chien specifically relied on the judgment delivered by McHugh J. In particular he pointed to the following passages at p.40:
[102] …Legal capacity is usually determined on the basis of the ability of the individual to understand the nature and consequences of a particular situation. Children are presumed to be incompetent at birth and gradually to acquire legal competence for various purposes at different stages of their development until they reach the age of majority…
[103] Parents in their capacity as guardians of an infant child have the power under common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision. Thus, where a child lacks capacity, the ordinary rules of the common law authorise the parent or guardian of the child to act on the child’s behalf. Parental authority diminishes as the child’s legal competence emerges. The parent’s authority is at an end when the child has sufficient intellectual and emotional maturity to make an informed choice.
[104] Thus, for the purposes of making immigration decisions, where the child lacks the capacity to make a decision, the discretion is vested in the parents or legal guardian of that infant child. (at [104])
Similar observations are made by Gummow J at [155] – [160].
As a matter of law, the position appears to be that legal capacity to make a decision, such as a citizenship decision (this is different in character to a migration decision: Milne v Minister for Immigration [2009] FMCA 462), is determined on the basis of the ability of the individual to understand the nature and consequences of the particular situation. Whether a child has acquired legal competence for any particular purpose is not just a function of the child’s age, but also the stage of their development. Whether they have the capacity to make the particular decision under consideration must be a question of law and fact. Parents, in their capacity as guardians of an infant child, only have power under the common law to make decisions on behalf of their child provided that the child does not have the competence to make the relevant decision for himself or herself.
Joseph is, in the eyes of the law, an infant. There is, however, no evidence to show that Joseph lacks the relevant capacity. There is no evidence either way to demonstrate that Joseph:
a)does not understand the “nature and consequences” of a decision in relation to his citizenship in Australia; or
b)does not have the “intellectual and emotional maturity” to make such a decision.
It seems to me that because I cannot make the requisite findings of fact on the evidence before me, it is appropriate to join Joseph to the proceedings. His interests will be necessarily affected by the decision and I cannot be satisfied that he does not have the appropriate capacity to make a decision about his Australian citizenship himself.
Moreover, there is another reason to maintain the order for joinder. Mr Chien prosecutes these proceedings on his own behalf. In his application he says that he is aggrieved by the decision because:
1. The Applicant is the father of the child Sheng-Yen Chien (born 7 February 2004) ("the child");
2. The Applicant was not consulted by the Respondent in respect of the application for Australian citizenship for the child;
3. The Applicant did not provide his consent for an application to be made to the Respondent for the conferral of Australian citizenship on the child;
4. The Applicant did not agree to the conferral of Australian citizenship on the child;
5. At all material times, the Applicant had parental responsibility for the child.
The grant of relief under the Administrative Decisions (Judicial Review) Act1977 is discretionary. Even if Mr Chien establishes that he is a person aggrieved by the decision of the respondent to grant Joseph citizenship, it does necessarily follow that he will be entitled to the relief that he seeks in the proceedings, especially where the rights of a third party might be affected by the outcome of the proceedings. In my view, it is no answer to that proposition to say that Mr Chien has parental responsibility for making such decisions for Joseph, because to assert that begs the factual questions posed above about Joseph’s maturity and capacity.
Mr Chien’s argument also assumes that the legal position in Taiwan concerning a parent’s entitlement to make decisions for their children is the legal position that will be adopted in this Court. There are a number of issues that arise out of that proposition. This proceeding is an Australian proceeding and is subject to Australian law. It is law of this forum which applies – not foreign law.
Private law parenting arrangements are only recognised and enforceable in Australia where they are the subject of a parenting plan or an order under the Family Law Act1975 (Cth). As such, a foreign contract or law has no effect in this jurisdiction unless, and until, it becomes the subject of an order under the Family Law Act. As the respondent points out, for a foreign parenting arrangement to be enforceable and recognised by an Australian court, it would need to be the subject of a foreign court order which was registered under s.70G of the Family Law Act. Only upon registration would it become enforceable: s.70H of the Family Law Act.
Moreover, as the respondent argues, the Taiwanese law upon which Mr Chien seems to rely on provides in Article 7 thereof (see the affidavit of Dr Chi-Thon Yo filed on 26 July 2012 annexure “CH1”) that a minor, who has not reached their seventh year of age, has no capacity to make “juridical acts”. The corollary seems to be that once over seven years of age, a minor does have capacity to make “juridical acts”. It seems to follow that that the exercise of juridical acts on behalf of a minor by his or her parent is, if the child is over seven, subject to the child lacking capacity to make the relevant decision.
In any event, these are all matters for evidence, both as to the foreign law and Joseph’s capacity. The evidence currently before me is insufficient to permit a finding to be made about them.
Joseph’s rights will be directly affected by any final decision in this matter. In my view, the application cannot be determined without his involvement in the proceedings. This necessity is not abrogated by the conferral of sole parental responsibility on Mr Chien, because the evidence lead by the parties does not allow me to make a determination on the balance of probabilities that Joseph lacks the capacity, either legally or as a matter of fact, to understand the implications of the proceedings. The decision of Bell J relied upon by Mr Chien does not assist him.
Order 2 – appointment of a litigation guardian
Joseph is a minor. By operation of FCCR 11.08 (2), “unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding”.
Given my determination concerning the joinder of Joseph to the proceedings it is appropriate that order 2 of the orders of 3 May, 2012 remains in place.
Conclusion
Mr Chien’s application that I discharge orders 1 and 2 of the orders made on 3 May, 2012 is dismissed.
The respondent seeks an order for the costs of this application. Costs should follow the event. Mr Chien’s application has been unsuccessful. He should pay the respondent’s costs of and incidental to this interlocutory application in a sum to be agreed between the parties, and failing agreement to be fixed by the Court on the next court date.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Associate:
Date: 7 May 2013
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