WZAOT v Minister for Immigration

[2011] FMCA 786

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOT v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 786

PRACTICE AND PROCEDURE – Application for review of decision by Federal Magistrate – appointment of litigation guardian – whether appointment of litigation guardian appropriate – whether appropriate for one judicial officer to set aside orders of another judicial officer – role of legal representative.

Federal Magistrates Court Rules 2001

SZKTG & Anor v The Minister (2007) FMCA 1513
WZAOT & Anor v Minister for Immigration & Anor [2011] FMCA 577

Applicant: WZAOT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 174 of 2011

Judgment of: Raphael FM

Hearing date: 7 October 2011

Date of Last Submission: 7 October 2011

Delivered at: Sydney

Delivered on: 7 October 2011

REPRESENTATION

Counsel for the Applicant: Mr J. L. Cameron

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PEG 174 of 2011

WZAOT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today a directions hearing in this matter, which in substance is an application by a three year old infant born in Australia for judicial review of a decision of the Refugee Review Tribunal determining that the infant was not a person to whom Australia owed protection obligations.  The application was originally filed in Perth on or around 29 June 2011.  The application was initially made in the name of the mother and the infant. 

2. Both the mother and father have, themselves, applied for protection, and each of them had their applications refused and applications for judicial review determined against them;  SZKTG & Anor v The Minister (2007) FMCA 1513. This matter came before Lucev FM in Perth. I assume from the fact that the later application was filed in Perth that the parents have moved to that city. I note, with some concern, that although the decision of the Federal Magistrates Court was made in September 2007, and if appealed would have been dealt with in 2008, the parents were still in Australia in 2011.

3. The claim by the infant came before Lucev FM in Perth on 25 July 2011 for directions. His Honour heard from a migration agent, who was attempting to obtain qualifications in law, seeking to represent both the mother and the child. His Honour determined that he would not hear the representative. His Honour then considered the position of the mother as a party to the proceedings. His Honour determined that the mother had no cause of action in her own right. His Honour went on to consider the appointment of a litigation guardian, pursuant to R.11.08(2) of the Federal Magistrates Court Rules 2001.  He noted that the child was a minor and stated in his decision;  WZAOT & Anor v Minister for Immigration & Anor [2011] FMCA 577 at [13]:

   “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 averse to that of the child in the litigation.” 

4. His Honour continues by making reference to an application that had been made before him that the father be appointed the litigation guardian.  His Honour decided that as the father had been notified of the time and date of the hearing and had not attended this did not indicate that the father was a suitable person to be appointed as the litigation guardian.  His Honour made what were described as “conclusions”.  These were:

   “a)    Mr Wong’s application to appear for the applicant’s must be refused.

   b)The application of the father to be appointed litigation guardian of the applicant and his application in the 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).”

5. That the court has power to appoint a litigation guardian is clear from R.11.11:

   “Appointment of litigation guardian

   (1)The court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.

   (2)A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.

   (3)The court may remove a litigation guardian at the request of the litigation guardian.”

6. Mr Cameron, a legal practitioner of the State of Western Australia, kindly agreed to act pro bono in this matter.  He did not appear at the hearing before Lucev FM, because, at that time, the applicant hoped to be represented by Mr Wong.  Although the case has been set down for hearing in Perth, it will, in fact, be heard by myself in Perth on circuit in November.  It was for this reason that Mr Cameron approached the Registrar, who referred the matter to my associate, indicating that he had some concerns about the appointment of the litigation guardian and the conduct of the matter thereafter.  He was informed by my associate that, in the circumstances, it was best that the matter be listed for directions, and it is this directions hearing with which I am currently dealing.  Mr Cameron provided the court with a helpful written submission, which is held with the papers.  In that written submission he deals with the effect of the appointment of a litigation guardian and at paragraph 8, commences a criticism of the appointment of the mother as such.  He argues two matters.  Firstly, that the mother has not filed an affidavit as required by R.11.11(2) and he says that as a result, the appointment is invalid.  He also indicates that he believes that the interests of the mother and the interests of the child are not necessarily as one. 

7. Mr Cameron has come to this court today with a request that I utilise R.11.11(1) to remove the mother as the litigation guardian and appoint another person, whom he does not name but whom he claims will have the interests of the child at heart.  The existence of such a person who would be prepared to act on behalf of a three-year-old Chinese child, who presumably speaks almost no English at all, and who would be responsible for the costs of any proceedings involving the child, other than one of the parents is, to my mind, somewhat doubtful.  But, in any event, there is a more serious objection to the application. 

8. It is not appropriate for one judicial officer in a court to set aside the orders of another judicial officer made after serious consideration of the facts and in an articulated judgment on the basis that the order made was legally defective.  The appropriate course of action, in my view, is to appeal the order to the Federal Court, or possibly to utilise those provisions of the Rules which allow a court to reconsider its decision.  I have my doubts whether those provisions, which usually refer to decisions which have not been entered, would be available, but I throw out the suggestion in case it appears that they are. 

9. Mr Cameron also tells me that he has not spoken to the appointed litigation guardian for reasons which I understand but which I believe do not advance the speedy resolution of this dispute.  It is clear to me that there must be a very strong presumption that the reason the mother has not filed the affidavit Mr Cameron says is necessary is because she does not understand, in terms of Lucev FM’s orders, all the requirements of the Rules.  This would come as no surprise: considering that she is a Chinese lady who speaks very little English and is of limited education.  If all that is necessary to be done in order to perfect the order of Lucev FM is for the mother to file an affidavit consenting to her appointment, then surely it is appropriate that the person who acts pro bono for the infant explains the process to the mother so that she can make up her own mind as to whether she will or will not file the affidavit.  If Mr Cameron thinks that she is not an appropriate person to be the litigation guardian, notwithstanding the views of Lucev FM, then it is at least appropriate that he guide her somewhere that will provide her with the necessary assistance.  The existence of refugee advocacy groups and persons who provide assistance to refugees is fortunately well known and is available throughout the Commonwealth. 

10. The position, as I see it, is this:  the orders of Lucev FM will not be disturbed by me and remain as orders of this court.  The requirements placed in the directions orders by Lucev FM for the filing of an amended application which sets out the jurisdictional error, or errors, that are alleged to have occurred in the decision of the Tribunal be filed.  The hearing, which is scheduled for 9 November, shall take place, and any other orders that are relevant, such as those for the filing of submissions, be complied with. 

11. I should make it clear that nothing in this judgment is to be taken as critical of Mr Cameron.  The existence of members of the bar who are prepared to provide their time and expertise on a pro bono basis is particularly important in matters of this type.  It is greatly appreciated not just by those who hear these matters but, I believe, by those who represent the respondents.  The views that Mr Cameron has expressed about the validity of the orders of Lucev FM are certainly open to him, and this court is grateful for his assistance.  Although no order has been made in this directions hearing, I believe it is appropriate that costs be reserved so that they can be determined at some future date. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  10 October 2011