WZAOT v Minister For Immigration and Anor (No.3)
[2011] FMCA 967
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOT v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2011] FMCA 967 |
| MIGRATION – Refugee Review Tribunal – protection visa – child for whom litigation guardian appointed. |
| PRACTICE AND PROCEDURE – Removal and appointment of litigation guardian – factors for consideration. |
| COSTS – Litigation guardian – indemnity costs order. |
| Federal Magistrates Act 1999 (Cth), s.79(3) Federal Magistrates Court Rules 2001 (Cth), rr.11.10, 11.11 Migration Act1958 (Cth), s.476 |
| Cann v Commonwealth Bank of Australia (No.6) [2011] FMCA 912 Fernando v Minister for Immigration (No.9) [2009] FCA 833 Jaffari & Anor v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 10; [2001] FCA 985 L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114 SBAH v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 552; [2002] FCAFC 426 WZAOT & Anor v Minister for Immigration & Anor [2011] FMCA 577 WZAOTv Minister for Immigration & Anor [2011] FMCA 786 WZAOT v Minister for Immigration & Anor (No.2) [2011] FMCA 843 |
| 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: | 2 December 2011 |
| Date of Last Submission: | 2 December 2011 |
| Delivered at: | Perth |
| Delivered on: | 9 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Cameron (pro bono) |
| Counsel for the Respondents: | Ms L Mitsikas |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That upon the filing of an affidavit by Ms Brenda Robbins consenting to be litigation guardian for WZAOT:
(a)That WZAOU be removed as litigation guardian of WZAOT.
(b)That Ms Brenda Robbins be appointed as litigation guardian of WZAOT.
(a) That the respondents are precluded from seeking any recourse to Ms Brenda Robbins for the payment of any costs order made in their favour in these proceedings and Ms Robbins is not personally liable in respect of any such costs order (“Costs Indemnity Order”).
(b)That the respondents have liberty to apply within seven days of the making of any costs order in their favour in these proceedings to vary the Costs Indemnity Order, if Ms Robbins has in the conduct of these proceedings, acted so unreasonably as to warrant varying the Costs Indemnity Order.
| 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
Issues
There are three issues for determination by the Court in this matter:
a)whether the mother of the applicant, known for the purposes of these proceedings as WZAOU, ought to be removed as the litigation guardian of WZAOT, who is her daughter and a stateless minor aged 3 years; and
b)whether a barrister, Ms Brenda Robbins, ought to be appointed as litigation guardian for WZAOT; and
c)if Ms Robbins is to be appointed as litigation guardian for WZAOT, whether she ought to be indemnified with respect to any costs of the proceedings, that being a condition of any consent she gives to act as litigation guardian for WZAOT.
Background
WZAOT is an allegedly stateless child of 3 years of age born in Australia to parents of Chinese nationality. In brief it is alleged that WZAOT will suffer serious harm and discrimination amounting to persecution if she is forced to travel to China with her parents (who are not in Australia lawfully) because she is a so-called “black child”, that is a child who is unregistered and does not have a Chinese passport (because she was born overseas).[1]
[1] Court Book at pages 111 and 133.
The unparticularised grounds of application to this Court for judicial review of the decision by the Refugee Review Tribunal,[2] which affirmed the decision of a delegate to refuse WZAOT a protection visa, are that there was jurisdictional error by reason of the failure to consider relevant considerations and the consideration of irrelevant considerations.
[2] Migration Act1958 (Cth), s.476
A brief history
WZAOU was appointed litigation guardian by order of the Court on
25 July 2011.[3]
[3] WZAOT & Anor v Minister for Immigration & Anor [2011] FMCA 577 at para.13 per Lucev FM (“WZAOT-WZAOU”). See also WZAOT v Minister for Immigration & Anor (No. 2) [2011] FMCA 843 at para.2 per Lucev FM (“WZAOT (No. 2)”).
A subsequent application, heard on 7 October 2011, to have WZAOU removed as litigation guardian because it was alleged that her appointment was incomplete and imperfect, was refused (by the Court constituted by Federal Magistrate Raphael), but without specifically ruling on the question of the validity of the appointment of WZAOU as litigation guardian for WZAOT.[4]
[4] WZAOT v Minister for Immigration & Anor [2011] FMCA 786 at paras.8 and 10 per Raphael FM (“WZAOT (No. 1)”)
On 1 November 2011 there was a further application to the Court to determine the validity of the appointment of WZAOU as litigation guardian for WZAOT. The Court determined that the appointment of WZAOU as litigation guardian for WZAOT was valid.[5]
[5] WZAOT (No. 2) at paras.13 and 22(a) per Lucev FM.
Further application
When the matter came back before the Court on 2 December 2011 there were a further two applications made. Those applications sought to:
a)remove WZAOU as the litigation guardian for WZAOT; and
b)appoint Ms Robbins as the litigation guardian for WZAOT, subject to the indemnity for costs.
The removal and appointment of litigation guardians
Should WZAOU be removed as litigation guardian?
Rule 11.11of the Federal Magistrates Court Rules 2001 (Cth)[6] deals with the appointment of a litigation guardian (amongst other things), and provides as follows:
[6] “FMC Rules”.
(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.
WZAOU affirmed an affidavit on 30 November 2011.[7] In WZAOU’s Affidavit she requests to be removed as litigation guardian for WZAOT, and also requests that Ms Robbins be appointed in her stead. WZAOU’s Affidavit is short, and it is convenient to set out the relevant parts, which are as follows:
[7] “WZAOU’s Affidavit”.
1.I am the mother of the applicant ….
2.I was not aware that I had been appointed as litigation guardian when I was in the Federal Magistrates Court on 25 July 2011, and have taken no further action on her behalf.
3.I was not asked whether I consented to become her litigation guardian.
4.If I had been asked, and told that if I had consented I would become liable for the Court costs if my daughter’s application was unsuccessful, and that if I refused the Court would probably appoint a lawyer to act as my daughter’s litigation guardian, I would not have consented. I am now aware from a migration agent that if costs are awarded against me, and I cannot pay the costs, this could pose difficulties for me in applying for a visa for myself.
5.I have limited education and very little English. I find appearing in these proceedings, particularly without my husband, very intimidating. I do not believe that I am capable of representing my daughter’s best interests.
6.My husband disappeared before the hearing before the Refugee Review Tribunal and has not contacted me since.
7.I have read the affidavit of Ms Brenda Robbins and would be happy if she were to act as my daughter’s litigation guardian.
8.I ask to be removed as litigation guardian and that Ms Robbins be appointed to represent my daughter.
WZAOU’s Affidavit provides a basis for her removal as the litigation guardian for WZAOT. In particular, the Court notes that:
a)WZAOU appears more concerned about the possible imposition of a costs order on her, and the effect that an unpaid costs order may have on her ability to apply for a visa in the future, than the immediate welfare of her daughter, WZAOT. That is a positive indicator that there is a probable conflict of interest between the position of WZAOU and WZAOT, which makes WZAOU unsuitable to continue to be the litigation guardian for WZAOT, because she may have an interest in the proceeding adverse to WZAOT;[8]
b)WZAOU has limited education (how limited however she does not say) and very little English, and that she finds appearing in the proceedings, especially without her husband (who has disappeared and with whom she has had no contact since late May 2011 at the latest), very intimidating, and that she consequently believes she is not capable of representing WZAOT’s best interests, an assertion which the Court now accepts.[9]
[8] WZAOU’s Affidavit, para.4; FMC Rules, r.11.10.
[9] WZAOU’s Affidavit, paras.5-6 and Court Book page 111.
On the above bases the Court considers it appropriate to remove WZAOU as the litigation guardian for WZAOT, provided that a suitable litigation guardian is available to be, and consents to be, appointed.
Should Ms Robbins be appointed litigation guardian?
The affidavit of Ms Robbins referred to by WZAOU in WZAOU’s Affidavit is in fact a draft affidavit which is ready to be signed as a consent to act as litigation guardian for WZAOT,[10] in the event that the Court approves Ms Robbins’ appointment as a litigation guardian for WZAOT.
[10] FMC Rules, r.11.11(2).
Although not formally tendered it does not appear that there is any dispute about the content of the affidavit which indicates that Ms Robbins is:
a)admitted as a barrister and solicitor of the Supreme Court of Western Australia, and practices solely as a barrister, having done so since 2007;
b)a registered migration agent;
c)prepared to act as WZAOT’s litigation guardian, subject to being indemnified against an award of costs; and
d)does not know the child or her family, and has no interest adverse to the child, and has agreed to assist in the best interests of the child.
The Court is satisfied by reason of Ms Robbins’:
a)preparedness to consent to act as litigation guardian for WZAOT;
b)position as a barrister; and
c)registration as a migration agent;
d)having no interest adverse to WZAOT; and
e)having agreed to act in WZAOT’s best interests,
that she is an appropriate person to be appointed as litigation guardian for WZAOT.
Costs – whether litigation guardian ought to be indemnified for costs
An order (which had been previously foreshadowed) was sought orally at hearing by WZAOT that Ms Robbins, if she was to be appointed litigation guardian, be indemnified from any liability for the costs of the proceedings. The Minister opposed the costs indemnity. The Minister was unable, when asked, to point to any precedent for a Court not granting an indemnity with respect to costs to a litigation guardian acting for a stateless 3 year old applicant for a protection visa in judicial review proceedings. Nor was any other analogous or useful authority drawn to the Court’s attention by the Minister in this regard.
This Court has power to make orders limiting or dispensing with the litigation guardian’s liability for costs, both on the basis of binding precedent,[11] and under the Federal Magistrates Act 1999 (Cth)[12] and the FMC Rules in the exercise of the broad discretion invested in the Court by the FM Act and FMC Rules.[13]
[11] Fernando v Minister for Immigration (No. 9) [2009] FCA 833 at para.13 per Siopis J (“Fernando (No. 9)”). See also the view expressed in Jaffari & Anor v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 10 at 16 per French J; [2001] FCA 985 at para.21 per French J (“Jaffari”) where, with respect to the liability for costs of court appointed pro bono representatives, the Federal Court said that: “Certainly no representative of the applicants should be exposed to any risk of costs on the basis that they lack the capacity to instruct counsel. I am prepared to make an order to secure that result.”
[12] “FM Act”.
[13] FM Act, s.79(3); Cann v Commonwealth Bank of Australia (No. 6) [2011] FMCA 912 at para.8 per Lucev FM (and cases there cited).
In determining whether to indemnify a litigation guardian from costs there are a number of factors, set out below, which must be considered and weighed:
a)first, one of the purposes of having a litigation guardian for a person who has brought, or is bringing, proceedings, is to ensure that there is a person available to bear costs if the person under a disability is unsuccessful in the proceedings;[14]
b)second, the protection of the person under a disability;[15]
c)third, the protection of the processes of the Court[16] including the prospect that if judgment is obtained against a person under a disability not represented by a litigation guardian, that judgment is voidable at the instance of the person under the disability;[17]
d)fourth, any prejudice to the respondent, particularly in relation to costs;[18] and
e)fifth, the particular circumstances in which the application is made, which may extend to a consideration of the particular disability. Thus, for example, there may be a significant difference between a minor of 16 to 18 years of age conducting judicial review proceedings, and a minor of 3 years of age conducting those same proceedings.[19]
[14] Fernando (No. 9) at para.15 per Siopis J.
[15] L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 at 438 per Black CJ, Moore and Finkelstein JJ; [2006] FCAFC 114 at para.25 per Black CJ, Moore and Finkelstein JJ (“HREOC”); Fernando (No. 9) at para.15 per Siopis J.
[16] HREOC ALR at 438 per Black CJ, Moore and Finkelstein JJ; [2006] FCAFC 114 at para.25 per Black CJ, Moore and Finkelstein JJ; Fernando (No. 9) at para.15 per Siopis J.
[17] SBAH v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 552 at 553 per Madgwick J and 559 per Emmett and Conti JJ; [2002] FCAFC 426 at para.1 per Madgwick J and at paras.33 and 35 per Emmett and Conti JJ.
[18] Fernando (No. 9) at para.16 per Siopis J.
[19] Jaffari FCR at 16 per French J; FCA at para.18 per French J.
It ought to be noted that:
a)some of the above factors may overlap with respect to the consideration by the Court; and
b)the list of factors ought not be considered to be closed.
In this case the putative litigation guardian consents to act as litigation guardian, conditional upon an indemnity with respect to the costs of the proceedings.
If there is no indemnity then, in all likelihood, there will be no litigation guardian, and for practical purposes, the proceedings may be at an end.
Given the serious nature of the issues and possible outcomes, including:
a)the proper determination of WZAOT’s refugee status;
b)Australia’s non-refoulement obligations to WZAOT; and
c)the responsibilities of Australia under the Convention on the Rights of the Child 1989,
to deny a young child, whose parents are not suitable to be litigation guardians, the opportunity to have the proceedings properly finalised (whatever the ultimate outcome or the merits of the claim)[20] because of a failure to indemnify a potential litigation guardian as to costs, seems a perverse and disproportionate outcome, and one not likely to be in the best interests of the child. The best interests of the child in this case outweigh the usual rule that an unsuccessful party (including a litigation guardian) ought pay the successful party’s costs.
[20] HREOC at ALR at 440 per Black CJ, Moore and Finkelstein JJ; FCAFC at para.34 per Black CJ, Moore and Finkelstein JJ.
A litigation guardian is necessary in this case to ensure that the Court’s processes are protected. Usually, they need to be protected from a person under a disability conducting the proceedings in a zealous or excessive manner.[21] In this case, the Court’s processes may need to be protected from a seemingly hard line approach by the Minister, Counsel for whom opposed:
a)the removal of WZAOU as litigation guardian;
b)the appointment of Ms Robbins as litigation guardian; and
c)the indemnity for costs sought for Ms Robbins were she to be appointed as litigation guardian.
[21] HREOC ALR at 438 per Black CJ, Moore and Finkelstein JJ; FCAFC at para.25 per Black CJ, Moore and Finkelstein JJ.
The Minister did so on the basis of “instructions”, which “instructions” do not appear, on the basis of the submissions made in Court, to have been based on any serious or proper consideration of merit, precedence, or appreciation of the Minister’s obligations as a model litigant. The Minister as model litigant is entitled to oppose applications made by applicants, including a minor, in judicial review proceedings, but it is hardly consistent with the obligations of a model litigant to oppose for what appears to be opposition’s sake, and without any sound rationale or cogent reason.
Giving the litigation guardian an indemnity as to costs in these proceedings does not appear to impose any significant prejudice on the Minister. If a litigation guardian were not appointed, and assuming that somehow, perhaps with the assistance of pro bono Counsel indemnified as to costs,[22] the proceedings were concluded, there seems, on the face of it, little more than a remote chance that costs would be recoverable from the child WZAOT, the child’s mother WZAOU, or the child’s father, who on the latest information before the Court is an escapee from immigration detention.
[22] Jaffari FCR at 16 per French J; FCA at para.21 per French J.
Taking into account all of the circumstances, the Court is of the view that the litigation guardian, Ms Robbins, ought to be indemnified with respect to the costs of these proceedings. That is so with one exception, which it is necessary to make in the interests of a proper balance between protecting the interests of the person under a disability and the respondents having recourse to a party capable of bearing costs, and that is that there must be provision for the indemnity costs order to be varied upon application if the litigation guardian acts so unreasonably in the conduct of the proceedings as to warrant a variation to the costs indemnity order.[23]
[23] “Costs Indemnity Order”; Fernando (No. 9) at para.18 per Siopis J.
Conclusion and orders
The Court has concluded that upon the filing of an affidavit by Ms Robbins consenting to be litigation guardian for WZAOT:
a)WZAOU ought to be removed forthwith as WZAOT’s litigation guardian; and
b)Ms Brenda Robbins ought to be appointed as litigation guardian for WZAOT in these proceedings.
There will also be a Costs Indemnity Order for Ms Robbins as litigation guardian in conducting the proceedings, unless she acts unreasonably. That order will be in the following terms:
a)the respondents are precluded from seeking any recourse to Ms Brenda Robbins for the payment of any costs order made in their favour in this proceeding and Ms Robbins is not personally liable in respect of any such costs order; and
b)the respondents have liberty to apply within seven days of the making of any costs order in their favour in these proceedings to vary the Costs Indemnity Order, if Ms Robbins has in the conduct of these proceedings, acted so unreasonably as to warrant varying the Costs Indemnity Order.
There will be orders accordingly. To allow for the filing of the affidavit of consent to act as litigation guardian by Ms Robbins, and for any necessary subsequent steps to be taken, the matter will otherwise be adjourned to a further directions hearing at 11.00am on 6 February 2012.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 9 December 2011
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