QAAM of 2002 (Director-General, Department of Families as Guardian ad litem) v Minister for Immigration and Multicultural Affairs

[2003] FCA 746

FEDERAL COURT OF AUSTRALIA

QAAM of 2002 (Director-General, Department of Families as Guardian ad litem) v Minister for Immigration & Multicultural Affairs

[2003] FCA 746

QAAM OF 2002 (DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES AS GUARDIAN AD LITEM) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q183 OF 2002

COOPER J
BRISBANE
2 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q183 OF 2002

BETWEEN:	QAAM OF 2002 (DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES AS GUARDIAN AD LITEM) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	2 JULY 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        No order made as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q183 OF 2002

BETWEEN:	QAAM OF 2002 (DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES AS GUARDIAN AD LITEM) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	COOPER J
DATE:	2 JULY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 21 November 2002, the applicant, by her father, filed an application seeking an order for review of a decision of the Refugee Review Tribunal (‘the RRT’) given on or about 7 October 2002 refusing to grant to the applicant a protection (Class XA) visa.  The applicant is a minor. 

2. On 31 March 2003, the Court appointed the Director-General, Department of Families (‘the Department’), as guardian ad litem/tutor of the infant applicant, in order to thereafter conduct the proceedings, having regard to the best interests of the applicant.

3. After interviewing the applicant, looking at all of the relevant material and obtaining legal advice from Crown Law, the Department has formed the view that there is no arguable case that the decision of the RRT is attended with legal error sufficient to obtain an order of this Court setting the decision aside and remitting the matter back to the RRT for further consideration.

4. Accordingly, the Department has, subject to obtaining the approval of this Court pursuant to O 43 r 9 of the Federal Court Rules, agreed with the respondent Minister to compromise the application on the basis that the application be dismissed and that no order for costs be made against the applicant.  The Minister has agreed to that course, but reserves the right to seek a recovery of costs against the father of the infant applicant.

5. I deal firstly with the question of the compromise. 

6. I have read and considered the documentation in this matter and I am of the view that the matter is properly one where the comprise ought to be approved.  There is not, in the written material, any demonstrable legal error sufficient to refuse to approve the proposed action taken by the Department.

7. Accordingly, the Court orders that the application for an order for review, filed on 21 November 2002, be dismissed and that there be no order as to costs as between the infant applicant and the respondent Minister.

8. I now turn to the objections voiced by the father of the infant applicant.

9. The applicant’s father attended and was heard on the proceedings today.  He sought to have all of the proceedings and all of the orders made since the filing of the originating application, set aside on the grounds of lack of fairness.  He also asked me to refuse to hear the proceedings, or to dismiss myself, or to disqualify myself from the proceedings, upon the basis of an allegation that I am part of a conspiracy which led to, allegedly, his arrest and the arrest of his daughter at some time in January 2003.

10. I thoroughly reject that suggestion.  I had nothing to do with any action that may have been taken by the Department of Immigration and Multicultural Affairs and it was something that was completely unknown to me, if in fact such events did occur.  Moreover, at the relevant time I was out of the country.

11. I am not persuaded that there are grounds upon which I ought to stand down from the discharge of the duty of a Judge of this Court to hear and determine the proceedings.  Accordingly, I refuse to do so.

12. So far as the matters are concerned, if the infant applicant’s father is of the view that he has grounds for appeal, then he can apply in the usual way by notice of appeal to a Full Court of this Court, seeking such relief as he may be advised.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RE Cooper.

Associate:

Dated:             18 July 2003

Counsel for the Applicant:	M Plunket
Solicitor for the Applicant:	Crown Law
Counsel for the Respondent:	P Bickford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 July 2003
Date of Judgment:	2 July 2003