WZAOT & Anor v Minister for Immigration & Anor
[2011] FMCA 577
•25 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 577 |
| MIGRATION – Refugee Review Tribunal decision – protection visa application – judicial review – stateless person – minor. PRACTICE & PROCEDURE – Representation by non-lawyer – appointment of litigation guardian – proper applicant. |
| Federal Magistrates Act 1999 (Cth), s.44 Federal Magistrates Court Rules 2001 (Cth), rr.4.05(1), 11.08(2), 11.10 |
| Collins v Department of Finance and Deregulation [2011] FMCA 240 SZQCL on behalf of SZQCM v Minister for Immigration & Anor [2011] FMCA 477 SZQDA v Minister for Immigration and Citizenship [2011] FCA 817 |
| First Applicant: | WZAOT |
| Second Applicant: | WZAOU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 174 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 25 July 2011 |
| Date of Last Submission: | 25 July 2011 |
| Delivered at: | Perth |
| Delivered on: | 25 July 2011 |
REPRESENTATION
| For the Applicants: | In person |
| Counsel for the Respondents: | Ms L Mitsikas |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The first applicant’s mother, who will be identified as WZAOU, be appointed litigation guardian of the first applicant (WZAOT).
The second applicant be removed as a party to the proceedings.
The application in a case by the applicant’s father be refused.
Mr Wong’s application to appear for the applicant be dismissed.
The first respondent shall file two copies and serve one copy of the court book on the applicant on or before 15 August 2011. The bundle is to include country information.
The applicant shall file and serve on or before 29 September 2011:
(a)any amended application; and
(b)any further affidavits upon which the applicant intends to rely at the hearing of this matter.
A hearing under Rule 44.12 be dispensed with and the substantive application be listed for final hearing at 2:15pm on 9 November 2011 before Federal Magistrate Raphael at Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, Perth.
The applicant file and serve an outline of submissions not less than 14 days before the hearing.
The first respondent file and serve an outline of submissions not less than 7 days before the hearing.
Liberty to either party to apply to the court for a listing for further directions on three days’ clear notice.
The father of the applicant pay the first respondent costs of the application in a case in the sum of $250 by 8 August 2011, otherwise costs of today are costs in the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 174 of 2011
| WZAOT |
First Applicant
| WZAOU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons – edited from transcript)
Introduction
Before the Court is an application by an apparently stateless child, and her mother, for judicial review of the decision of the Refugee Review Tribunal[1] not to grant a protection visa. The protection visa application is essentially based upon a fear of future persecution in China by reason of the treatment of children born outside the one‑child family planning policy, often referred to as “black children”.
[1] “Tribunal”
Representation by a non-lawyer
Mr Wong is a migration agent who seeks to appear for the applicants. Mr Wong states that he is familiar with the circumstances of the case, and although not qualified as a lawyer, he is a second‑year law student who has completed an immigration law course.
The fact that Mr Wong is a migration agent gives him no right of appearance before the Court on an application for judicial review. Mr Wong is not a person entitled to practice as a barrister or solicitor in a federal court, or otherwise authorised under any law of the Commonwealth to represent a party in an application for review of a decision of the Tribunal. Thus, by reason of s.44 of the Federal Magistrates Act 1999 (Cth), Mr Wong is not entitled to represent the applicants in these proceedings. Mr Wong does, however, make an application to seek to represent the applicants and the Court must, therefore, deal with that application.
In so doing, the Court notes that any discretion it has to allow an unqualified person to appear must be exercised cautiously.[2] The Court also notes that, generally speaking, the experience of the federal courts with respect to migration agents who are not qualified as lawyers is such that they have generally been of little assistance to the federal courts and, importantly, to their clients.[3] In Reynolds the Court observed that:
When deciding whether to exercise discretion to grant leave to allow a non‑lawyer to appear on behalf of a party, courts generally take into account the following principles:
(a) the complexity of the matter;
(b) the genuine difficulties of a self‑represented party;
(c) the unavailability of disciplinary measures against, and in the absence of any duty to the Court by, lay advocates;
(d) protection of the client and the opponent from the actions of an unqualified person;
(e) whether lay advocates ought to appear in inferior courts and tribunals; and
(f) the interests of justice.[4]
[2] Reynolds v Minister for Health & Anor (2010) 247 FLR 425; [2010] FMCA 843 (“Reynolds”); Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230.
[3] NAGM v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 125 FCR 488; [2002] FCAFC 396; SZPZY v Minister for Immigration & Anor [2011] FMCA 463.
[4] Reynolds FLR at 429 per Lucev FM; FMCA at para.8 per Lucev FM.
Complexity of the matter
The issues in this matter are no more or less complex than the usual judicial review of protection visa application cases. The fact that this matter involves a so called “black child” under China’s one‑child policy does not make it more complex than the usual protection visa application cases, and the Court notes that there have been several cases involving such children determined by this Court in recent times.[5]
[5] See, for example, SZQCL on behalf of SZQCM v Minister for Immigration & Anor [2011] FMCA 477; SZQDM & Anor v Minister for Immigration & Anor [2011] FMCA 551.
Genuine difficulties of a self-represented party
The Court notes that applicants for protection visas will almost always have difficulties in presenting their applications to the Court. That is because they are, generally speaking, laypersons who are unfamiliar with the Court. The majority of protection visa applicants speak little or no English, or have English as a minor secondary language, and in this respect, at least, they are comparatively disadvantaged compared to the ordinary litigant.
In this case, of course, those genuine difficulties are compounded by the fact that the applicant is a child who is two weeks short of three years old. Nevertheless, the difficulties for the applicant might in part be ameliorated by the appointment of the applicant’s mother as a litigation guardian. The applicant would then stand in no different position to the vast majority of unrepresented persons who appear in protection visa application cases before this Court.
Unavailability of disciplinary measures against lay advocates
The Court notes that it has no disciplinary measures available in the event of misbehaviour by the migration agent before the Court, short of referring any issues which arise in Court, and which do not fall within the bounds of contempt of Court, to the Migration Agents Registration Authority. In that regard, the Court notes with concern that Mr Wong has completed the lawyer’s certification on the applicant’s application form, albeit noting that he is a migration agent and not a lawyer, but certifying that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. Thus, Mr Wong has effectively strayed into the certifying and giving of advice with respect to legal matters which he is not qualified to give.
Protection from the actions of an unqualified person
With respect to the protection of the client, the Court notes that Mr Wong:
a)is a migration agent and not a lawyer;
b)has purported to give a legal certification in circumstances where he is not qualified to do so;
c)has filed an application which contains no particularised grounds for the application for judicial review;
d)has not caused to be filed an affidavit on behalf of the applicant with respect to factual matters, which is required by r.4.05(1) of the Federal Magistrates Court Rules 2001 (Cth);[6] and
e)has filed submissions which are not required at this stage of the proceedings.
[6] “FMC Rules”.
The Court has read those submissions and they do not, with respect, reveal any detailed understanding of the concept of jurisdictional error as it operates in judicial review applications before this Court. Thus, the submissions that have been made, and the application that has been filed, are such that they do not demonstrate the requisite knowledge of the law, or the relevant procedure, for the Court to be satisfied that the applicant is more likely to be assisted, rather than prejudiced, by Mr Wong’s appearance.
Whether lay advocates ought to appear
The Court notes that it is not usual for lay advocates to appear in cases involving the judicial review of migration decisions by the Tribunal,[7] or in judicial review applications generally.[8]
[7] SZQDA v Minister for Immigration and Citizenship [2011] FCA 817; SZQDA v Minister for Immigration & Anor [2011] FMCA 471.
[8] See, for example, Collins v Department of Finance and Deregulation [2011] FMCA 240 at paras.36-37 per Lucev FM.
The interests of justice
In the above circumstances, the Court does not consider that the interests of justice would be advanced by Mr Wong’s appearance for the applicants.
Appointment of a litigation guardian
The Court considers it appropriate that a litigation guardian be appointed for the applicant, who is a minor, by reason of r.11.08(2) of the FMC Rules. Whilst the applicant’s mother has also made an application as a co-applicant in these proceedings, for reasons which will follow shortly, she will be struck out as an applicant. In these circumstances, it is appropriate that the applicant’s mother be appointed litigation guardian in these proceedings as she:
a)is a person who is an adult; and
b)does not have interests adverse to that of the child in the litigation.[9]
[9] FMC Rules, r.11.10.
There was an application made this morning for the applicant’s father to be appointed the litigation guardian. That application was made in lieu of the application in a case which had been filed to join him as an applicant in these proceedings. The Court raised with Mr Wong whether or not he appeared for the applicant’s father, and Mr Wong confirmed that he did. Mr Wong also informed the Court that he had notified the applicant’s father as to the date and time of this morning’s hearing, and that he had no explanation for the non-appearance of the applicant’s father in Court today. That of itself, in the Court’s view, is sufficient to indicate that the applicant’s father is an unsuitable person to be appointed the litigation guardian for a minor who is his own child. Furthermore, the Court notes from the submissions filed on behalf of the applicants that, as was freely admitted today, the father was a person who had escaped from immigration detention in Australia. In these circumstances, the Court could not be satisfied that the father might be in a future position to properly conduct this litigation on behalf of his daughter.
The proper applicant
The Court turns to the issue of the applicant’s mother, who is purported to be an applicant in these proceedings. The first respondent seeks an order that the mother be removed as an applicant. In the circumstances, given that the mother was not the subject of the Tribunal’s protection visa application decision, it is appropriate for her to be removed as an applicant in these proceedings. The same would follow for the father, had the application in a case for him to be joined as an applicant been pressed.
Conclusions
It follows from the Court’s earlier reasons that:
a)Mr Wong’s application to appear for the applicants must be refused;
b)the application of the father to be appointed litigation guardian of the applicant, and his application in a case, must be dismissed; and
c)the mother is to be:
i)removed as an applicant in these proceedings; and
ii)appointed the litigation guardian of the applicant (WZAOT).
In these circumstances, it is appropriate that the Court also make the usual orders with respect to migration matters at a first directions hearing.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 27 July 2011
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