FEDERAL COURT OF AUSTRALIA

Chien v Minister for Immigration and Citizenship [2013] FCAFC 124

THE COURT ORDERS THAT:

1.    Leave to appeal against the order made by the Federal Circuit Court on 7 May 2013 be refused.

2.    The interlocutory application filed by the applicant (Mr Chien) on 11 October 2013 be dismissed.

3.    Costs of the respondent of and incidental to this hearing be paid by Mr Chien.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    On 5 August 2010 following a decision of a delegate of the respondent Minister, a child, Sheng-Yen Chien (“Joseph”), was granted Australian citizenship. Australian citizenship was granted to Joseph’s mother on the same application.

2    Mr Ho-Yuan Chien, a Taiwanese national, is Joseph’s father. Joseph is presently 9 years old (born 7 February 2004). Mr Chien has purported to appeal against a decision of the Federal Circuit Court although he acknowledges he may need leave to do so. Insofar as he may need leave, Mr Chien seeks that leave and requests that argument on the leave application be treated as argument on any permitted, consequential appeal. Though he submits that a grant of leave to appeal is necessary and that leave should be refused, the Minister is content that the case be dealt with in that way. Mr Chien has sought leave to file further evidence in support of his application.

3    Mr Chien filed in this Court an application on his own behalf seeking judicial review of the decision of the Minister to grant his son citizenship. That application was remitted for hearing in what was then known as the Federal Magistrates Court, now the Federal Circuit Court. Mr Chien claims he has sole parenting rights in respect of Joseph.

4    The Federal Circuit Court (Jarrett FCJ) made orders on 3 May 2012 joining Joseph as a party to the judicial review proceedings and providing for the appointment of a litigation guardian for him. The orders were made on the basis that Joseph’s rights would be directly affected by the outcome of the judicial review proceedings. On 7 May 2013 his Honour dismissed Mr Chien’s application to discharge those orders.

5    There are three related matters currently before this Court, which were filed by Mr Chien:

    an application for leave to appeal his Honour’s decision of 7 May 2013;

    assuming leave to appeal is granted, the notice of appeal; and

    an interlocutory application seeking to adduce additional evidence on appeal.

6    In our view the applications for leave to adduce further evidence and for leave to appeal should be dismissed for reasons to which we will shortly turn.

BACKGROUND

7    Mr Chien resides in Taiwan, as does Joseph. Joseph’s mother is Huang Hsiao-Yun. On 29 July 2010 Ms Huang lodged an application for Australian citizenship with the Department of Immigration and Citizenship (“the Department”). The application included her son in accordance with s 46(2A) of the Australian Citizenship Act 2007 (Cth) (“Australian Citizenship Act”).

8    A delegate of the Minister assessed that Ms Huang met the initial requirements for Australian citizenship. She passed the citizenship test on 5 August 2010. On that date, a delegate of the Minister considered that Ms Huang met the requirements of s 21(2) of the Australian Citizenship Act, and approved Ms Huang becoming an Australian citizen by conferral. The delegate found that Ms Huang was a responsible parent of Joseph, and that Joseph met the requirements of s 21(5) of the Australian Citizenship Act.

9    In her statement of reasons dated 31 October 2011, the delegate of the Minister states:

As the client’s history shows, Ms Huang lodged an application for a permanent residence visa (Onshore Business Skills Subclass 893) on 21.07/2007 at the Brisbane office of DIAC. The application included her spouse, Mr Chien Ho-Yuan (d.o.b. 03.08.1970) and her child, Master CHIEN Sheng-yen (d.o.b 07.02.2004). All three persons were granted SubClass 893 permanent residence visas on 10.11.2008 at the Brisbane office of DIAC.

At the time of his application for citizenship on 29.07.2010, Master CHIEN was considered to be a resident of Brisbane and living with his mother, Ms Huang. Master CHIEN had departed Australia on 12.06.2010. There is a client note in ICSE (Departmental Processing System) made on the 29.07.2010 (the day of application) advising that Master CHIEN was visiting family in Taiwan. I considered Master CHIEN to have his usual address in Australia and to be usually residing in Brisbane with his mother, notwithstanding that at the time of his application and decision he was with family in Taiwan.

I considered Ms Huang to be a responsible parent of Master CHIEN. Ms Huang presented a Taiwanese Family Register showing her as the mother of the child, Master CHIEN. The child CHIEN was on his mother’s Medicare card. Master CHIEN was included in Ms Huang’s application for permanent residence.

DECISION OF THE FEDERAL CIRCUIT COURT

10    Mr Chien filed an application for judicial review of the decision of the respondent to confer Australian citizenship on Sheng-Yen Chien on 5 August 2010 in this Court on 30 November 2011. Mr Chien sought an order that the decision of the Minister be quashed or set aside.

11    The application for judicial review stated that Mr Chien was aggrieved by the decision because:

    Mr Chien is the father of the child Sheng-Yen Chien.

    the Minister did not consult Mr Chien in respect of the application for citizenship of the child.

    Mr Chien did not provide his consent for an application to be made to the Minister for the child to become an Australian citizen or for the child to become an Australian citizen.

    at all material times Mr Chien had parental responsibility for the child.

12    In summary, the grounds of Mr Chien’s application for judicial review were as follows:

    The Minister breached the rules of natural justice in making the decision by failing to consult with Mr Chien or seek his consent as the person with parental responsibility for the child.

    The Minister’s decision was induced or affected by fraud because inter alia Hsiao-Yun Huang did not disclose to the Minister at the time she lodged the child’s citizenship application that the child was living in Taiwan with Mr Chien.

    There was no evidence to justify the Minister’s decision. The note in the Department’s processing system stated that the child was visiting family in Taiwan when the child was living permanently in Taiwan at the time.

    The decision was an improper exercise of power because the Minister exercised his discretion without regard to the merits of the particular case.

13    His Honour made orders on 3 May 2012 that:

(1)    The child SHENG-YEN CHIEN (born 7 February 2004) be joined as a party to these proceedings.

(2)    The parties agree on a litigation guardian for the child and failing agreement that a request issue to the Attorney General for the Commonwealth of Australia for the appointment of a litigation guardian for the child SHENG-YEN CHIEN (born 7 February 2004).

(3)    The applicant serve all material filed by both the applicant and respondent upon the mother of the child.

(4)    This matter be adjourned for further directions at 9.30 am on 13 June 2012 in the Federal Magistrates Court of Australia at Brisbane.

(5)    Costs of today be reserved.

14    At a directions hearing on 13 June 2012, Counsel for Mr Chien made an oral application that orders 1 and 2 of the orders of 3 May 2012 be discharged. Counsel submitted that the orders were no longer appropriate due to a subsequent material change in circumstances.

15    His Honour delivered judgment in Chien v Minister for Immigration & Citizenship [2013] FCCA 218 on 7 May 2013 referable to that oral application. In that judgment, his Honour made the following orders:

(1)    The oral application for an order that orders 1 and 2 of the orders of 3 May 2012 be discharged is dismissed.

(2)    The applicant pay the respondent’s costs of and incidental to the application in a sum to be agreed between the parties, and failing agreement to be fixed by the Court on the next court date.

(3)    The application be listed for directions at 9.30am on 20 May 2013 in the Federal Circuit Court of Australia sitting in Brisbane.

16    In relation to whether Joseph should be joined as a party to the proceedings, his Honour referred to r 11.01 of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”) which provides:

“a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding”.

17    Counsel for Mr Chien submitted that it was not necessary to join Joseph as a party on the basis that Mr Chien has sole parental responsibility for Joseph as a result of the Taiwanese orders giving Mr Chien sole custody of Joseph. The Minister submitted that it was appropriate to join Joseph as a respondent because his rights would be directly affected by a final determination of the judicial review application.

18    His Honour summarised the background to his decision materially as follows:

7.    … The facts appear sufficiently from the judgment of Bell J in Yang v Chin [2011] FamCA 703 as follows:

4.    The parties were married in November 1997 in Tawain [sic]. The parties and the subject child were born in Taiwan and immigrated to Australia when the child was 18 months old in 2008. …

5.    The Wife and subject child were granted Australian citizenship in September 2010. The Wife submits the Husband consented to this application, but the Husband asserts the application was a unilateral decision of the Wife…

6.    […]

7.    Proceedings in Taiwan were commenced by way of “Divorce Settlement Agreement” on 21 September 2009.…For the purposes of this Application it is common ground that the Divorce Agreement bestowed the rights and duties with regard to the child upon the Husband […]

8.    Under clause 5 of the Agreement it was agreed that “the Male Party … shall be solely responsible for exercising the rights and assuming the duty in regard to their minor child…” […]

8.    Joseph’s mother applied to the Taiwan Taipei Family District Court in July, 2010 challenging the validity of the Divorce Settlement Agreement. She also commenced proceedings in Taiwan seeking orders that she exercise rights or assume duties alone in regard to Joseph.

…

10.    Final Judgment and reasons for decision were given in Taipei in June, 2011. Bell J summarises the orders made as follows:

1.    Civil Application for the Final Order to Change the Custodian concerning the minor child [J] born […] February 2004 is hereby dismissed.

2.    The Applicant may visit, communicate and live with the minor child [J] born […] February 2004 in the designative time as the attached schedule.

3.    The Applicant mother is restrained from taking the minor child [J] or requesting any person form taking the child [J] from the territory of the Republic of China without the prior consent of the Respondent father, and the minor child [J] is restrained from leaving the territory of the Republic of China without the prior consent of the Respondent father either.

11.    In the midst of the proceedings in Taiwan, in August, 2010 Joseph’s mother commenced proceedings…[which] were transferred to the Family Court of Australia. In those proceedings, Joseph’s mother sought parenting orders which were inconsistent and different to the terms agreed between the parties in the Divorce Settlement Agreement.

…

14.    … [H]er principal application for parenting orders in respect of Joseph remained unresolved. And so remained the position when the present application came before me on 3 May, 2012.

15.    The change in circumstances relied upon by the applicant which requires the directions made on 3 May, 2012 to be revisited is that Bell J has now disposed of Joseph’s mother’s principal application by, on 23 May 2012, ordering that it be permanently stayed (Yang & Chin [2012] FamCA 436).

19    For the purposes of his joinder decision, Judge Jarrett assumed that the terms of the orders of the Taiwanese court, or the Divorce Settlement Agreement, confer upon Mr Chien sole parental responsibility (at [19]). Materially, his Honour reasoned:

22.    Therefore the questions that one must ask when considering whether it is necessary to join a party to a proceeding are:

(a)    taking into account the orders sought, are the rights and liabilities of a third party likely to be directly affected by a decision in the matter; and

(b)    what is the nature and value of the rights that are likely to be affected; and

(c)    are there any practical reasons as to why joinder may be seen to be inappropriate.

23.    Once this test has been applied, if it is found that a third person’s rights are likely to be directly affected by a decision, orders should not be made unless that person is joined as a party.

…

26.    Having regard to the test set out above, prima facie, it is necessary to join Joseph as a party to these proceedings. Mr Chien ultimately seeks that the conferral of Australian citizenship on Joseph be revoked. That involves a direct interference with the rights that he presently enjoys as a citizen of this country. True it is that given his age Joseph might not seek to exercise those rights for some time, but that is not to the point. The rights and entitlements that flow from citizenship are now, and will be, available to him whilst soever he remains an Australian citizen.

…

41.    Joseph is, in the eyes of the law, an infant. There is, however, no evidence to show that Joseph lacks the relevant capacity. There is no evidence either way to demonstrate that Joseph:

(a)    does not understand the “nature and consequences” of a decision in relation to his citizenship in Australia; or

(b)    does not have the “intellectual and emotional maturity” to make such a decision.

42.    It seems to me that because I cannot make the requisite findings of fact on the evidence before me, it is appropriate to join Joseph to the proceedings. His interests will be necessarily affected by the decision and I cannot be satisfied that he does not have the appropriate capacity to make a decision about his Australian citizenship himself.

43.    Moreover, there is another reason to maintain the order for joinder. Mr Chien prosecutes these proceedings on his own behalf. In his application he says that he is aggrieved by the decision…

44.    The grant of relief under the Administrative Decisions (Judicial Review) Act 1977 is discretionary. Even if Mr Chien establishes that he is a person aggrieved by the decision of the respondent to grant Joseph citizenship, it does not necessarily follow that he will be entitled to the relief that he seeks in the proceedings, especially where the rights of a third party might be affected by the outcome of the proceedings. In my view, it is no answer to that proposition to say that Mr Chien has parental responsibility for making such decisions for Joseph, because to assert that begs the factual questions posed above about Joseph’s maturity and capacity.

45.    Mr Chien’s argument also assumes that the legal position in Taiwan concerning a parent’s entitlement to make decisions for their children is the legal position that will be adopted in this Court. There are a number of issues that arise out of that proposition. This proceeding is an Australian proceeding and is subject to Australian law. It is law of the this forum which applies – not foreign law.

46.    … for a foreign parenting arrangement to be enforceable and recognised by an Australian court, it would need to be the subject of a foreign court order which was registered under s.70G of the Family Law Act. Only upon registration would it become enforceable: s.70H of the Family Law Act.

…

48.    In any event, these are all matters for evidence, both as to the foreign law and Joseph’s capacity. The evidence currently before me is insufficient to permit a finding to be made about them.

49.    Joseph’s rights will be directly affected by any final decision in this matter. In my view, the application cannot be determined without his involvement in the proceedings. This necessity is not abrogated by the conferral of sole parental responsibility on Mr Chien, because the evidence lead [sic] by the parties does not allow me to make a determination on the balance of probabilities that Joseph lacks the capacity, either legally or as a matter of fact, to understand the implications of the proceedings. The decision of Bell J relied upon by Mr Chien does not assist him.

(Emphasis in original.)

20    Once the primary judge ordered that Joseph should be joined as a party to the proceedings, his Honour found it appropriate to keep his order in place in relation to appointing a litigation guardian for Joseph: r 11.08(2) Federal Circuit Court Rules.

21    On 17 May 2013 Mr Chien filed an application in this Court for leave to appeal the orders made on 7 May 2013.

22    His Honour made an order on 20 May 2013, adjourning the Federal Circuit Court proceeding to a date to be fixed pending the outcome the application for leave to appeal and the appeal against the orders made on 7 May 2013.

APPLICATION FOR LEAVE TO APPEAL AND NOTICE OF APPEAL

23    On 17 May 2013 Mr Chien filed an application for leave to appeal from the judgment of the Federal Circuit Court of Australia.

24    Mr Chien’s grounds for leave to appeal are as follows:

(1)    The Decision and Reasons of the Learned Federal Circuit Court Judge are attended by sufficient doubt as to their correctness to warrant reconsideration by the Full Court of the Federal Court of Australia.

(2)    The questions raised below are matters of public importance insofar as the Learned Federal Circuit Court Judge decided that Australian Law ought to be applied as to the question of the status of the Applicant to bring the principal proceeding and the status of the child, Joseph, as opposed to the substantive law of their place of habitual residence.

(3)    The Learned Federal Circuit Court Judge’s Reasons misconstrue the Federal Circuit Court Rules in such a way as to warrant the Full Court’s consideration of the effect, particularly of r11, as to the circumstances in which a person must necessarily be joined as a party to a proceeding.

(4)    Substantial injustice will result insofar as the Applicant for leave has the benefit of orders made in the Republic of China (“Taiwan”) granting him sole custody or parental responsibility for the child, Joseph, when the Learned Federal Circuit Court Judge’s Reasons have the effect of diminishing the role of the Applicant for leave by applying the law of Australia rather than the substantive law of the place of the Applicant and the child, Joseph’s, habitual residence.

25    The draft notice of appeal, which is attached to the application for leave to appeal, lists the following grounds of appeal:

(1)    The Learned Federal Circuit Court Judge erred in failing to apply s 111CS of the Family Law Act 1975, in relation to the Applicant’s sole entitlement to make decisions for Joseph.

(2)    The Learned Federal Circuit Court Judge erred by considering that the Taiwanese parenting orders in place for Joseph were constrained or limited by Australian law.

(3)    The Learned Circuit Court Judge erred in effectively construing and applying Federal Circuit Court Rule 11 as being mandatory in terms insofar as, having determined that Joseph might be affected by the outcome of the principal proceeding, notwithstanding the prior final determination of the matter of parental responsibility by various Judgments of the Family Court of Australia, recognising the Applicant’s sole parental responsibility in Taiwan, he was a necessary party to the proceeding.

(4)    In construing and applying FCCR 11 as he did, the Learned Federal Circuit Court Judge erred by ignoring the unchallenged evidence before him as to the effect of the Orders made in Taiwan as being the governing consideration for the Applicant’s parental responsibility for Joseph and the Applicant’s ability to bring and conduct the proceeding on Joseph’s behalf in accordance with the law of their habitual place of residence.

(5)    The Learned Federal Circuit Court Judge erred in determining that Joseph’s competence to make decisions was a relevant consideration.

(6)    The Learned Federal Circuit Judge erred and failed to accord the Applicant procedural fairness in delaying his decision for a period of almost 10 calendar months and then erroneously deciding the Application on a dearth of evidence as to Joseph’s capacity (if that was relevant), when:

a.    Joseph’s capacity, competence and understanding were irrelevant to the decision;

b.    Only Joseph’s place of habitual residence and the law of that forum was relevant;

c.    Further evidence could, and should, have been called for by His Honour in aid of a just and lawful determination of the Application (when the absence of such evidence has not been raised in argument by either party or the Court), particularly in relation to His Honour’s assumed “corollary” to the unchallenged evidence as to Taiwanese law as to parental responsibility for Joseph and the Applicant’s sole entitlement, to the exclusion of all others, to exercise such responsibility on behalf of Joseph.

26    In the draft notice of appeal Mr Chien seeks the following orders:

(1)    The appeal be allowed and the Orders made on 7 May 2013 be set aside.

(2)    In lieu thereof it be ordered that:

a.    The application for an order that order 1 and 2 of the orders of 3 May 2012 be allowed and the said orders be discharged.

b.    The Respondent pay the Appellant’s costs of the appeal and the application below.

INTERLOCUTORY APPLICATION TO ADDUCE NEW EVIDENCE

27    Also before the Court is an interlocutory application filed by the applicant on 11 October 2013 which seeks the following relief:

1.    Pursuant to r 36.57 of the Federal Court Rules 2011 the Court receive further evidence on Affidavit or by oral examination on the Application for Leave to Appeal and the Appeal.

28    The Court has power to receive additional evidence on appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), which provides:

27    Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

29    Rule 36.57 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”) provides:

36.57    Further evidence on appeal

(1)    A party may apply for the Court to receive further evidence on appeal.

(2)    The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following:

(a)    briefly but specifically, the facts on which the application relies;

(b)    the grounds of appeal to which the application relates;

(c)    the evidence that the applicant wants the Court to receive;

(d)    why the evidence was not adduced in the court appealed from.

(3)    The application and the affidavit must be filed as follows:

(a)    if the appeal is to the Full Court—4 copies;

(b)    if the appeal is to a single Judge—2 copies.

(4)    Any other party to the appeal who wants to adduce evidence on the appeal must file an affidavit at least 14 days before the hearing of the appeal.

Note:    Section 27 of the Act allows the Court to receive further evidence on appeal.

PROPOSED NOTICE OF CONTENTION

30    Prior to this hearing, the Minister proposed to file a notice of contention. The proposed notice states that Judge Jarrett’s judgment should be affirmed on grounds other than those relied on by the Judge. The Minister does not seek a discharge or variation of any part of the judgment, or seek to cross-appeal. At the hearing Counsel for the Minister said that the Minister pressed the notice of contention.

31    The notice of contention relies on the following grounds:

The appellant is prohibited from:

•    Conducting the primary proceeding in his own name on Sheng-Yen Chien’s behalf;

•    Conducting the primary proceeding in his own name for Sheng-Yen Chien’s benefit; or

•    Acting in the primary proceeding as Sheng-Yen Chien’s litigation guardian,

by reason of the existence of an actual or perceived conflict between the appellant’s interests and the interests of Sheng-Yen Chien or, alternatively, by reason of the appellant having an actual or perceived interest in the primary proceeding adverse to the interest of Sheng Yen-Chien.

SUBMISSIONS

32    In summary Mr Chien submits as follows:

    The decision of his Honour was not an interlocutory judgment because:

                 ₒ    the decision involved a question of the proper law of Joseph’s status and capacity;

                 ₒ    his Honour designated Australian law as applicable to the responsibilities, obligations and rights of a child insofar as such child’s status to litigate in Australia, which was, in substance, a final decision.

    The principal error of his Honour, which permeates each ground of appeal, was to hold that the law of Australia was that which applied to the determination of the necessity or otherwise for Joseph’s joinder, and to find that a Litigation Guardian other than Mr Chien was required when the law of Joseph’s domicile authorises Mr Chien to exercise custodial and parental responsibility for Joseph while he remains a minor in Taiwan (until the age of 20 years).

    Although Joseph was ordered to be joined to the proceeding pursuant to his Honour’s view of the construction of r 11.01 of the Federal Circuit Court Rules, that rule should and could not have been the prime relevant consideration as to whether Joseph’s rights needed independent and separate representation in circumstances where the decision of the Minister was obtained by the fraud of Joseph’s mother.

    His Honour had difficulty coming to grips with the conflict of laws question which arose in this case.

    Issues concerning “parental responsibility” under subss 111CS(2), (3) and (4) of the Family Law Act 1975 (Cth) (“Family Law Act”) are governed by the law of the country of the child’s habitual residence, not the law of the forum.

    In relation to Mr Chien’s interlocutory application seeking the Court’s leave to adduce further evidence pursuant to r 36.57 of the Federal Court Rules:

                 ₒ    the primary judge should have called for further expert evidence or submissions; and

                 ₒ    his Honour fundamentally misconstrued the evidence as to the effect of the Taiwanese law relevant to status and capacity.

33    The Minister submitted in summary:

    The decision of his Honour was interlocutory, thus requiring leave to appeal. This is because the legal effect of his Honour’s orders was no more than that the child be joined to the proceeding and a litigation guardian appointed.

    Leave to appeal should be refused because, inter alia:

                  ₒ    the decision was not attended by sufficient doubt to warrant reconsideration;

                  ₒ    substantial injustice would not follow should the decision continue to stand;

                  ₒ    the manner in which Mr Chien proposes to run the appeal is different to the manner in which it was conducted before his Honour below.

    Laws or rules directed towards procedural questions were to be determined in accordance with the law of the jurisdiction where the action was brought. Rule 11.01(1) and r 11.08 of the Federal Circuit Court Rules call within this category.

    The primary judge found that there was insufficient evidence to establish what the relevant laws of Taiwan said about the incapacity of the child Joseph.

    The Court should refuse Mr Chien leave to lead further evidence the subject of Dr Chi-Thon Yo affirmed 11 October 2013.

Consideration

34    In our view the decision of his Honour was an interlocutory decision, leave is required, and leave should be refused. We also consider that the application of Mr Chien pursuant to r 36.57 of the Federal Court rules for the Court to receive further evidence should be dismissed.

35    First, principles applicable to determination of whether a decision is final or interlocutory are well-settled. As explained in Hall v Nominal Defendant (1966) 117 CLR 423, a final order finally disposes of the rights of the parties (Barwick CJ at 430, Taylor and Owen JJ at 439-440, Windeyer J at 443 and cf Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 254). In Chien v Minister for Immigration and Citizenship [2013] FCCA 218 his Honour did no more than rule upon an oral application to discharge a joinder order in respect of Joseph and an order that the parties agree on a litigation guardian for Joseph (in default of which a request issue to the Attorney-General for the appointment of a litigation guardian). Such orders squarely fall within the scope of the practice and procedure of the Federal Circuit Court. In no way can it be said that such orders finally determine the matter between the parties, or finally determine the rights of the parties in a principal cause pending between them. Indeed, it has been accepted previously in this Court that an order joining a party to proceedings is an interlocutory order (Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28). Similarly, an order requiring the appointment of a litigation guardian is an interlocutory decision: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114. An application to discharge such orders must, perforce, also be an interlocutory application and orders refusing to so discharge must be interlocutory orders.

36    Second, we are not satisfied that the orders of his Honour conclusively determined an issue of conflict of laws such as to finally determine that issue, as submitted by Counsel for Mr Chien. The “conflict of laws” issue agitated by Mr Chien concerns whether Mr Chien is entitled, pursuant to Taiwanese law, to make decisions on behalf of his son with respect to such matters as citizenship. It is clear that his Honour did not, and did not purport to, make any such conclusive determination. His Honour’s rulings concerned practice and procedure in the Federal Circuit Court, pursuant to rules of that Court, in circumstances where his Honour had not only formed a view that Joseph was a person whose participation in the proceedings was necessary, but where the evidence before the Court as to the effect of Taiwanese law was inconclusive.

37    Third, we are not satisfied that the evidence of Dr Yo sought to be tendered by Mr Chien ought be received by the Court. We take this view in circumstances where:

    No satisfactory explanation has been provided by Mr Chien as to why evidence of this nature was not before his Honour. Mr Chien complained in Court that his Honour improperly failed to require further expert evidence to be provided to the Court. In our view such a submission is at the very least surprising, when the application to discharge orders to join Joseph as a party and have a litigation guardian appointed was made orally by Counsel for Mr Chien, presumably without the support of evidence such as is sought to be tendered in this Court. Any lack of preparation or satisfactory evidence in this regard must lay squarely at the feet of Mr Chien.

    Further, we are not satisfied as to the cogency of this evidence. As the Full Court explained in Guss v Johnstone [2000] FCA 1455 at [30] the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at the trial. In response to questions from the Bench, Counsel for Mr Chien conceded that evidence in Dr Yo’s affidavit did not directly support the proposition that Mr Chien had the sole right to commence litigation on behalf of the child Joseph (transcript p 37 ll 1-12). It is difficult to see how the admission of this evidence would have produced a different result to his Honour’s conclusion at [48] that the evidence before the Court in respect of the status of Mr Chien as a litigant under Taiwanese law was equivocal.

38    In any event Mr Chien had not, under the rules of the Federal Circuit Court, commenced the litigation on behalf of Joseph but rather in his own right as a person personally aggrieved by the Minister’s decision and there had been no suggestion by the Minister before that court that he was incapable in his own right of being so aggrieved.

39    Fourth, as explained by this Court in the well-known case Decor Corporation Pty v Dart Industries Inc [1991] 33 FCR 397, in considering whether leave to appeal in respect of an interlocutory decision ought be given the Court should have regard to:

    whether the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and

    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

40    We are not satisfied that either test has been satisfied.

41    At [19]-[51] his Honour discussed, in considerable detail, principles relevant to the joinder of a party and the appointment of a litigation guardian. In particular, his Honour considered (and applied) the reasoning of the Full Court in News Ltd v The Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524, 525 where the Court explained that:

An order which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside …

…

The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322 per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.

(emphasis added.)

42    In this case it is not in dispute that Mr Chien had commenced proceedings in his own right. The subject of the application for judicial review before his Honour was the Australian citizenship of the child Joseph. While Counsel for Mr Chien submitted that there was no evidence before the Court that the child was seized of rights arising from his Australian citizenship, such a submission ignores a plethora of rights which exist as a matter of law, having regard to the statutory rights which attach to Australian citizens including the right to vote (s 93 Commonwealth Electoral Act 1928 (Cth)), the right to hold an Australian passport (s 7 Australian Passports Act 2005 (Cth)), the right to stand for Federal Parliament (s 163 Commonwealth Electoral Act 1928 (Cth), subject to s 44 of The Constitution) and the right to work in the Australian public service (s 22 Public Service Act 1999 (Cth)). Indeed, Counsel for Mr Chien conceded that the child Joseph was presently entitled to these rights (transcript p 18 ll 14-15).

43    French J (as his Honour then was) observed in Minister for Immigration and Multicultural Affairs v Perth City Mission [1999] FCA 670 that an application for a visa directly affects the applicants, who are entitled to be joined to proceedings concerning that application. Similar principles apply in relation to a citizen in respect of a Ministerial decision to confer that citizenship. Nothing could be clearer than that an application to quash a decision conferring citizenship upon Joseph affects Joseph’s rights.

44    In this light, a submission that his Honour erred in finding that the child Joseph was directly affected by the proceedings, and therefore was a necessary party to the application commenced by Mr Chien for the purposes of r 11.01(1) of the Federal Circuit Court Rules, cannot be sustained.

45    Further, r 11.08(2) provides that unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding. His Honour clearly found that:

    there was no evidence before the Court as to the capacity of the child to understand the concept of Australian citizenship including the rights thereby conferred; and

    while Mr Chien had sole parental responsibility for Joseph, he had commenced the application for judicial review because he – Mr Chien personally – was aggrieved by the Minister’s decision.

46    In circumstances where the application for judicial review had been commenced by Mr Chien on his own behalf there remains a potential conflict of interest for Mr Chien to act as the litigation guardian of Joseph in these proceedings. His Honour expressly identified this potential. To that extent, we consider his Honour properly ordered that a litigation guardian be appointed to Joseph, but note in any event that the terms of his Honour’s order potentially permit Mr Chien to act as the litigation guardian depending on the agreement of the parties and, in default, the decision of the Attorney-General for the Commonwealth. Further, even if it transpires that a third party litigation guardian must be appointed, in all likelihood that person would be bound to take into account the rights and responsibilities Mr Chien enjoys in respect of Joseph and the position which applies in respect of Joseph in light of orders made by the Family Court. That is not exhaustive of considerations which such a litigation guardian might take into account but it should not be assumed that the litigation guardian would be duty bound to act as a contradictor in respect of Mr Chien’s judicial review application.

47    Finally, even were we not satisfied that sufficient doubt to warrant reconsideration did not attend his Honour’s judgment, we are not satisfied that the decision would occasion substantial injustice to Mr Chien were it wrong. The orders of his Honour contemplate the procedural steps of the joinder of the child Joseph to the proceedings, and the appointment of a litigation guardian. In our view, these were proper orders to protect the interest of a directly affected party on the facts of this case.

Conclusion

48    In the circumstances it is unnecessary for us to consider the Minister’s notice of contention.

49    We regard the present as a paradigm example of that class of case to which is applicable the cautionary note sounded by Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323, in a passage cited with express approval by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177:

. . . I am of opinion that, . . . there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

50    We are satisfied that leave to appeal his Honour’s decision should be refused, and that the Court should decline to receive the further evidence of Dr Yo tendered by Mr Chien.

Associate:

Dated:    8 November 2013