WZAOT v Minister For Immigration and Anor (No.2)
[2011] FMCA 843
•1 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOT v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2011] FMCA 843 |
| MIGRATION – Refugee Review Tribunal – protection visa – child for whom litigation guardian appointed. |
| PRACTICE AND PROCEDURE – Litigation guardian – validity of appointment. |
| Federal Magistrates Act 1999 (Cth), ss.3, 42 Federal Magistrates Court Rules 2001 (Cth), rr. 1.03, 1.05(2), 1.06, 11.09, 11.11 Migration Act 1958 (Cth), s.476 |
| Gaudron v Dalwood [2001] FMCA 111 Hu & Ors v Minister for Immigration & Anor [2008] FMCA 804 NAGC & Ors v Minister for Immigration [2002] FMCA 171 NAIV & Ors v Minister for Immigration [2003] FMCA 356 NANS & Ors v Minister for Immigration [2003] FMCA 598 Rickleman & Bird v Secretary DFHCSIA & Ors [2009] FMCA 20 SZAJT & Anor v Minister for Immigration [2004] FMCA 99 SZALW & Ors v Minister for Immigration [2004] FMCA 258 SZAPS & Anor v Minister for Immigration [2004] FMCA 287 SZDPB & Ors v Minister for Immigration & Anor [2005] FMCA 1067 SZJPO & Ors v Minister for Immigration & Anor [2007] FMCA 1801 WZAOTv Minister for Immigration & Anor [2011] FMCA 786 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: | Lucev FM |
| Hearing date: | 1 November 2011 |
| Date of Last Submission: | 1 November 2011 |
| Delivered at: | Perth |
| Delivered on: | 1 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Cameron |
| Counsel for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the hearing on 9 November 2011 be vacated; and
That the matter otherwise be adjourned to a further directions hearing before Federal Magistrate Lucev at 2.00pm on 2 December 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 174 of 2011
| WZAOT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application for judicial review under s.476 of the Migration Act 1958 (Cth) by a child in relation to a protection visa application. That application was refused by a delegate of the first respondent, the Minister, with that refusal affirmed by the second respondent, the Refugee Review Tribunal.[1]
[1] “Tribunal”.
Litigation History
On 25 July 2011 this matter came before the Court for a first directions hearing. The Court made an order that the first applicant, WZAOT, have a litigation guardian appointed. That litigation guardian was WZAOT’s mother, known, for the purposes of these proceedings as WZAOU.
In WZAOT & Anor v Minister for Immigration & Anor[2] the Court appointed WZAOU litigation guardian on the basis that she was an adult who did not have interests adverse to that of WZAOT in the litigation.[3] There was no affidavit of consent to be litigation guardian from WZAOU, but WZAOU was present in Court (with a migration agent assisting her, but not, ultimately, appearing for her) and there was no indication to the Court that WZAOU was not prepared to be litigation guardian.
[2] [2011] FMCA 577 (“WZAOT - WZAOU”).
[3] WZAOT- WZAOU at para.13 per Lucev FM.
In WZAOT-WZAOU:
a)WZAOT was unrepresented (an application to be represented by a migration agent was dismissed);[4]
b)WZAOU was also unrepresented, and purported to be a second applicant in the proceedings, but was removed as a party to the proceedings because she was not the subject of the Tribunal’s decision on WZAOT’s protection visa application;[5] and
c)an application by WZAOT’s father to be appointed litigation guardian was dismissed, he being held to be unsuitable to be a litigation guardian by reason of his:
i)failure to attend the proceedings of which he apparently had notice, and
ii)being a person who had escaped from immigration detention.[6]
[4] WZAOT- WZAOU at paras.2-12 and 16(a) per Lucev FM.
[5] WZAOT- WZAOU at paras.15 and 16(c)(i) per Lucev FM.
[6] WZAOT- WZAOU at paras.14 and 16(b) per Lucev FM.
On 25 July 2011 the matter was listed for hearing before Federal Magistrate Raphael in Perth on 9 November 2011, and further orders were made that WZAOT file and serve on or before 29 September 2011:
a)any amended application; and
b)any further affidavits intended to be relied upon at hearing.
On 7 October 2011 the Court was convened for a directions hearing at the request of pro bono Counsel who had been appointed for the applicant. That directions hearing was before Federal Magistrate Raphael. At that hearing it was argued by pro bono Counsel, that the appointment of WZAOU as litigation guardian was incomplete and imperfect because no affidavit consenting to the appointment had been filed by WZAOU. The Court refused an application to remove WZAOU as litigation guardian, observing that:
a)the Court did not consider it appropriate that one judicial officer of this Court set aside the orders of another judicial officer of this Court made after serious consideration and in an articulated judgment on the basis that the order originally made was legally defective;[7]
b)(i) the appropriate course if the orders were considered to be legally defective was to appeal to the Federal Court; or
(ii)it might possible, and it was no more than a suggestion the utility of which the Court doubted, to utilise the provisions of the Federal Magistrates Court Rules 2001 (Cth)[8] to allow the Court to reconsider its order appointing WZAOU as litigation guardian.[9]
[7] WZAOTv Minister for Immigration & Anor [2011] FMCA 786 (“WZAOT (No 1)”).
[8] “FMC Rules”.
[9] WZAOT (No 1) at para.8 per Raphael FM.
In WZAOT (No 1) the Court concluded that:
10. The position … 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. [10]
[10] WZAOT (No 1) at para.10 per Raphael FM.
The argument concerning the validity of the appointment of WZAOU as litigation guardian
At the request of pro bono Counsel for the applicant this matter has now been called on for a further directions hearing. At the directions hearing this morning it became apparent that the validity of the appointment of the litigation guardian was an issue which needed to be determined before this matter can otherwise proceed.
The argument put before the Court by pro bono Counsel for the applicant, who appeared (as he did on 7 October 2011) on the basis that he was assisting the Court, and not representing the applicant, was that the appointment of WZAOU as litigation guardian was imperfect and incomplete because she had not filed what was said to be the required affidavit consenting to her appointment as litigation guardian. Pro bono Counsel pointed to r.11.09(1) of the FMC Rules which provides as follows:
(1) A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian.
and r.11.11(2) of the FMC Rules which provides as follows:
(2) A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.
No issue was taken with the manner in which the proceedings were commenced.
It was argued that WZAOU had not filed and served an affidavit under r.11.11(2). About that there is no dispute. It was also argued that in the affidavit WZAOU would have been required to attest to:
a)her consent: and
b)the fact that she had no interest adverse to that of WZAOT,
and that in so doing WZAOU would have become liable for the payment of costs in the event that the application proved unsuccessful. The consequence of WZAOU’s conduct in failing to file an affidavit is said to be that her appointment as litigation guardian is imperfect and incomplete. It is then argued that if WZAOU’s appointment is imperfect and incomplete it is necessary that another person be appointed as litigation guardian. It is, however, necessary to first determine whether or not the appointment of WZAOU as litigation guardian is incomplete and imperfect.
Consideration
Rule 1.06(2) of the FMC Rules provides as follows:
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Rule 1.06(2) of the FMC Rules operates so as to perfect any order of the Court which is made and which is inconsistent with any of the FMC Rules. The appointment of WZAOU as litigation guardian by order of this Court without the necessity for the filing of an affidavit under r.11.11(2) gives rise to such an inconsistency. The effect of r.1.06(2) of the FMC Rules is to give effect to the Court’s order rather than requiring that the relevant rule be complied with.
The effect of r.1.06(2) of the FMC Rules in this case is to validate the appointment of WZAOU as litigation guardian under the Court’s orders made on 25 July 2011. The Court concludes that r.11.11(2) of the FMC Rules is not required to be complied with given the order made by the Court on 25 July 2011 appointing WZAOU as litigation guardian.
The conclusion in the preceding paragraph is not inconsistent with judgments of this Court where various parties, including those for whom a litigation guardian is appointed, have appeared in Court, and where no objection is taken to the litigation guardian’s appointment at that time, the Court has ordered the appointment of a litigation guardian (usually a parent or partner dependent upon the status of the person for whom the litigation guardian is being appointed) without the Court requiring that there be an affidavit under r.11.11(2) of the FMC Rules.[11]
[11] SZJPO & Ors v Minister for Immigration & Anor [2007] FMCA 1801 at para.15 per Nicholls FM; SZDPB & Ors v Minister for Immigration & Anor [2005] FMCA 1067 at para.3 per Nicholls FM; SZALW & Ors v Minister for Immigration [2004] FMCA 258 at para.1 per Driver FM.
There have been numerous cases in which the filing of an affidavit as to the appointment of a litigation guardian under r.11.11(2) of the FMC Rules has been formally dispensed with by the Court under r.1.06(1) of the FMC Rules, usually without any reasons whatsoever being given by the Court.[12] The practice and procedure of the Court has been, in appropriate circumstances, to appoint litigation guardians in migration proceedings without necessarily requiring compliance with the requirements of r.11.11(2) of the FMC Rules.
[12] See Hu & Ors v Minister for Immigration & Anor [2008] FMCA 804; SZAPS & Anor v Minister for Immigration [2004] FMCA 287; SZAJT & Anor v Minister for Immigration [2004] FMCA 99; NANS & Ors v Minister for Immigration [2003] FMCA 598; NAIV & Ors v Minister for Immigration [2003] FMCA 356; NAGC & Ors v Minister for Immigration [2002] FMCA 171.
The approach of the Court, as set out above, is consistent with s.42 of the Federal Magistrates Act 1999 (Cth)[13] which provides that the Court “must” proceed without undue formality and must endeavour to ensure that proceedings are not protracted. The objects of the FM Act and the FMC Rules make similar provision.[14]
[13] “FM Act”.
[14] FM Act, s.3; FMC Rules, r.1.03. See also the observations in Rickleman & Bird v Secretary DFHCSIA & Ors [2009] FMCA 20 at para.32 per Roberts FM.
No particular assistance is to be derived, in the above circumstances, from the relevant rules or practices of the Federal Court with respect to the appointment of “tutors” in the Federal Court, because:
a)the relevant rules are not the same;[15]
b)this Court has specific rules applicable to the actual circumstances of this case, and there is, therefore, no need to resort to the rules of the Federal Court;[16] and
c)WZAOU has been validly appointed.
[15] Gaudron v Dalwood [2001] FMCA 111 at para.19 per Driver FM.
[16] FMC Rules, r.1.05(2).
Future conduct of litigation
Having regard to submissions made this morning, considerations arise as to the future conduct of the litigation, and in particular whether the hearing on 9 November 2011 ought to be vacated.
Firstly, it is both proper and necessary for pro bono Counsel to consider his position as pro bono Counsel given the conflict he perceives between:
a)the interests of the child WZAOT; and
b)the position of WZAOU, the litigation guardian who has conduct of the litigation on behalf of WZAOT and from whom Dr Cameron ought to be taking instructions, but to whom he has not spoken because of the perceived conflict of interest. If Dr Cameron continues as pro bono Counsel for WZAOT it will be necessary for him to speak to WZAOU so as to facilitate the future conduct of the litigation.
Secondly, no amended application or affidavits in support of an amended application have been filed. Albeit undesirable and contrary to the Court’s orders, it is, in the circumstances, understandable. It is however apparent that, whatever now happens, there is insufficient time before the 9 November 2011 hearing to allow for:
a)the obtaining of appropriate instructions from WZAOU as to the filing of those documents;
b)the preparation of the documents;
c)the filing and service of the documents; and
d)the documents, if filed and served, to be properly considered and responded to by the Minister.
In all the circumstances, the Court considers that:
a)the hearing of this matter on 9 November 2011 ought to be vacated; and
b)the matter be otherwise adjourned to a further directions hearing.
Conclusion
The Court has concluded that:
a)rule 1.06(2) of the FMC Rules has the effect of perfecting the appointment of WZAOU as litigation guardian because the order of the Court made on 25 July 2011 appointing WZAOU as litigation guardian prevails over r.11.11(2) of the FMC Rules;
b)the practice and procedure of the Court has been, in appropriate circumstances, to appoint litigation guardians in migration proceedings without necessarily requiring compliance with the requirements of r.11.11(2) of the FMC Rules;
c)the hearing of this matter on 9 November 2011 ought to be vacated; and
d)the matter ought otherwise be adjourned to a directions hearing before Federal Magistrate Lucev at 2.00pm on 2 December 2011.
There will be orders accordingly with respect to the vacation of the hearing on 9 November 2011 and adjournment of the matter to a directions hearing at 2.00pm on 2 December 2011.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 1 November 2011
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