Sethia v Minister for Immigration

[2020] FCCA 92

FEDERAL CIRCUIT COURT OF AUSTRALIA

SETHIA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 92

Catchwords:
MIGRATION – Appointment of litigation guardian – where the litigation guardian was ordered to file and serve an amended application which was to include detailed particulars of the ground or grounds of review sought to be relied upon by the Litigation Guardian at the hearing of the application for review – where direction made that the Registrar have power to dismiss application for review if litigation guardian failed to comply with such court order requiring the litigation guardian to file and serve the amended application – where costs reserved.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.102(2)(i), 102(2)(f)

Federal Circuit Court Rules2001 (Cth), rr.11.11(1), 13.03A(1)(a), 13.03B(1)(c), 21.02(2)

Cases cited:

DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951

Applicant: FAHIM SETHIA

First Respondent: MINISTER FOR IMMIGRATION, CITZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 677 of 2018

Judgment of: Judge Egan

Hearing date: 13 January 2020

Date of Last Submission: 13 January 2020

Delivered at: Brisbane

Delivered on: 13 January 2020

REPRESENTATION

Litigation Guardian for the Applicant: Ms D Miers

Solicitor for the First Respondent: Ms R Topham of Minter Ellison

ORDERS

1. Ms. Denese Miers be appointed as Litigation Guardian for the Applicant pursuant to the provisions of Rule.11.11(1) of the Federal Circuit Court Rules 2001 (Cth).

2. The said Denese Miers shall file and serve an affidavit of consent to her acting as Litigation Guardian in this matter on or before 4:00pm on 20 January 2020.

3. The hearing of this matter listed for 22 January 2020 at 9.30am be vacated.

4. By 4.00pm on 10 May 2020, the Litigation Guardian is to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Litigation Guardian at the hearing of the application for review.

5. By 4.00pm on 17 May 2020, the Litigation Guardian shall file and serve any affidavit containing any additional evidence upon which the Litigation Guardian proposes to rely relevant to the grounds of review.

6. By 4.00pm on 24 May 2020, the First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the grounds of review.

7. This matter be adjourned to the Registrar of the Federal Circuit Court of Australia at Brisbane to a date to be fixed, for the purpose of the listing of the matter for directions concerning the Litigation Guardian’s compliance or noncompliance with Order 4 hereof relating to the ordered filing by the Litigation Guardian of an amended application containing detailed particulars of the grounds for review as so ordered by Order 4 hereof.

8. The First Respondent shall obtain a copy of the transcript of today’s proceedings and reasons, and forthwith provide a copy of such transcript and reasons to the Litigation Guardian.

9. In the event that the Litigation Guardian has failed to comply with Order 4 hereof, in breach of the provisions of Rule.13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Court directs, pursuant to the provisions of s.102(2)(i) and s.102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar has such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth), and thereupon to make an order as to costs pursuant to the provisions of Rule.21.02(2) of the Federal Circuit Court Rules 2001 (Cth).

10. The costs of and incidental to the hearing today be reserved.

IT IS NOTED THAT:

A.The Litigation Guardian was put on notice, during the course of today’s hearing, that in the event that the Litigation Guardian failed to comply with Order 4 hereof relating to the filing of an amended application as provided for in Order 4 hereof, the application before the Court for review of the decision of the Administrative Appeals Tribunal handed down on 22 June 2018 was liable to be dismissed pursuant to the provisions of Rule.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth), a copy of which Rule is to be provided to the Litigation Guardian by the lawyers for the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 677 of 2018

FAHIM SETHIA

Applicant

And

MINISTER FOR IMMIGRATION, CITZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 14 November 2019, this matter last was before the Court.  On that occasion, the Court was of the view that the applicant was unable to effectively conduct his claim for review because he lacked the mental capacity to do so. In support of an application for an adjournment on that occasion, the applicant deposed that he was taking psychotic medicines – presumably he meant antipsychotic medicines – and that he did not know what was happening.

2. Annexed to his affidavit in support of his application for an adjournment filed on 12 November 2019, was a letter from a consultant psychiatrist called Dr John McAulay. The letter was dated 23 October 2019 and in part recorded that the applicant’s symptoms did not appear to be resolving as at the date of the letter “…despite high doses of medication and previously seeking out inpatient treatment and second opinions from psychiatrists”. Dr McAulay considered that the applicant’s position should be reconsidered in a six-month period of time – namely, in or about April 2020.

3. The Court made an order on 14 November 2019, directing the Registrar of the Federal Circuit of Australia at Brisbane to:

   “2. …forthwith approach Legal Aid Queensland and the Office of the Public Guardian (Queensland) to arrange for the appointment of a litigation guardian for and on behalf of the applicant, as foreshadowed in Order 3 below.”

4. Order 3 made that day provided that the person who consented to be appointed as a litigation guardian was to file and serve an affidavit of consent by 12 December 2019. 

5. Annexure A to these reasons, which was marked as Exhibit 2 in this proceeding, is a copy of the letters of the Registrar of the Federal Circuit Court of Australia at Brisbane, sent to each of Legal Aid Queensland and the Office of the Public Guardian, on 19 November 2019. The registrar received responses from each of the Office of Public Guardian and from Legal Aid Queensland, those responses being respectively marked as Annexures B and C to these reasons, and marked as Exhibit 3 and Exhibit 4 respectively in the proceeding.

6. It is clear from the terms of each of the annexed letters that the applicant in this matter was not able to receive the willing assistance from either of the two bodies from whom assistance was sought.  In those circumstances, correspondence was directed to the applicant, seeking details as to whether he knew of a person who might appropriately act as litigation guardian on his behalf. The matter was listed for directions on the question of the appointment of a legal guardian to today before this court.

7. At the time the applicant announced his appearance there appeared with him, at his side, one Denese Miers.  Ms Miers indicated that she was the mother of the applicant’s former partner.  Ms Miers provided her address and email contact details to the Court.  Ms Miers was asked by the Court whether she appreciated that if she was to agree to act as litigation guardian on behalf of the applicant, that she would effectively be standing in the shoes of the applicant in respect of his application for review.  Ms Miers acknowledged that that was her understanding.

8. Ms Miers also acknowledged that she appreciated that if appointed as litigation guardian on behalf of the applicant, that she would have to abide by all orders of the Court as made, because those orders would be made in circumstances where such orders imposed an obligation on her to obey such orders. Ms Miers stated that she understood and appreciated that obligation, and she stated that she would comply with any court orders. The Court is of the view that Ms Miers would appreciate the content of any court orders and that she appreciated the need to comply with any orders so made.

9. The Court is satisfied, having heard from Ms Miers, that she is a suitable person to act as litigation guardian on behalf of the applicant in this matter. In those circumstances, pursuant to the provisions of Rule.11.11(1) of the Federal Circuit Court Rules2001 (Cth), the Court appoints Denese Miers as litigation guardian for and on behalf of the applicant Fahim Sethia in this matter.

10. The court makes consequential orders directing that the Registrar shall have power to dismiss the application and make a costs order against the litigation guardian in the event of a failure by her to comply with an order of the court requiring her to file an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Litigation Guardian at the hearing of the application for review. The transcript of today’s proceeding records the court’s views relevant to the lack of particularisation of the applicant’s grounds of review, which views have earlier been expressed in DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  20 January 2020

ANNEXURE A:

ANNEXURE B:

ANNEXURE C: