Federal Court of Australia

BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 1

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 26 November 2019 to file and serve a notice of appeal against orders of the Federal Circuit Court of Australia made on 28 November 2017, the application for leave to amend the draft proposed notice of appeal contained within the applicants’ submissions dated 24 May 2022 and the interlocutory application filed on 11 July 2022 seeking various orders be dismissed with costs.

2.    Within 14 days, the parties file and serve submissions of no more than two pages as to costs, including who should bear the costs.

3.    The name of the first respondent be varied to the Minister for Immigration, Citizenship and Multicultural Affairs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 21 January 2020 to file and serve a notice of appeal against orders of the Federal Circuit Court of Australia made on 14 August 2018 and the application for leave to amend the draft proposed notice of appeal contained within the applicants’ submissions dated 28 May 2022 be dismissed with costs.

2.    Within 14 days, the parties file and serve submissions of no more than 2 pages as to costs, including who should bear the costs.

3.    The name of the first respondent be varied to the Minister for Immigration, Citizenship and Multicultural Affairs.

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

REASONS FOR JUDGMENT

THE COURT:

1    Before the Court are two applications for an extension of time in which to file and serve appeals from orders made by the then-Federal Circuit Court of Australia (FCC). The applications are made by two groups of minors who, it was submitted, were not bound by the earlier dismissal of appeals to which they were nominally parties.

2    The identification of the relevant actors is made confusing by the need to comply with s 91X of the Migration Act 1958 (Cth).

3    Proceeding NSD2002/2019 concerns a Tamil family from Sri Lanka comprising a father, mother and four daughters (identified for the litigation as BJH17 and BKZ17, and BLA17, BKV17, BKW17, and BKX17). The father, together with his second eldest daughter (born 1999), came to Australia as unauthorised maritime arrivals in November 2012. Later, in May 2013, the three other daughters came to Australia with their mother, also as unauthorised maritime arrivals. All of the daughters were minors upon arrival. The eldest daughter (born 1997) reached her majority prior to the institution of proceedings in the FCC. Prior to the appeal in this Court from the FCC orders (and various other relevant events), the second daughter reached her majority. The two youngest daughters were born in 2005 and 2010. We will refer, without any intended disrespect, to the family by reference to the number 17 and their familial positions: the father 17, mother 17, eldest daughter 17, minor children 17, and so forth; and to the proceeding as 17. The applicants in proceeding 17 are the two children who were at all relevant times minors. The applicants do not include second daughter 17 who arrived a minor, but ceased to be a minor before the appeal to this Court, before the filing of the amended originating application in the FCC upon which the parties moved, and before the making of the litigation guardianship order by the Registrar. Second daughter 17 is a respondent to the applications.

4    Proceeding NSD59/2020 concerns another Tamil family from Sri Lanka: father and mother and two minor children. Father, mother and one child arrived as unauthorised maritime arrivals in May 2013. The second child was born in Australia in 2016. We will refer, again without any intended disrespect, to the family by reference to the number 18 and their familial positions and to the proceeding as 18.

5    The principal claim for each family was made by the father. The father 18 claimed to fear harm because of suspected involvement with the Tamil Tigers. No other claims were made (nor are they said now to have been made) by the mother and minor 18 children. Their claims for protection were entirely dependent on the success of father 18’s claims.

6    The father 17 claimed to fear harm by reason of detention, torture and interrogation by special task force officers in relation to a shooting near his shop. The claims made by the mother and four daughters 17 were dependent (at least in part) upon father 17’s claim for protection. There were, or at least now are, asserted other claims: of the mother and daughters 17 in their own right.

7    In each proceeding, the claims of the families were rejected by a delegate of the Minister, each of which decisions was affirmed by the Immigration Assessment Authority, challenges to which decisions of the Authority were dismissed by the FCC and appeals against each judgment of the FCC were dismissed by a single judge of the Court (Logan J in respect of proceeding 17: BHJ17 v Minister for Immigration and Border Protection [2018] FCA 891; and Besanko J in respect of proceeding 18: BYI18 v Minister for Home Affairs [2019] FCA 803). Special leave to appeal to the High Court was refused in each proceeding (see in respect of proceeding 17: BJH17 v Minister for Immigration and Border Protection [2018] HCASL 281; and see in respect of proceeding 18: BYI18 and Ors v Minister for Home Affairs [2019] HCASL 254).

8    The minor children in each family say that they are not bound by the outcome of the appeals as they say that no litigation representative was appointed for the appeal in this Court to protect their interests. Thus, they contend that they are not bound by its result, relying upon Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 83–84 (Latham CJ), 85 (Rich J), 100 (Dixon J) and 111–115 (Williams J). Thus, the minor children contend that they (though not their parents, and in the case of family 17, not their adult sisters) can challenge the FCC decisions in this Court and through it the decisions of the Authority.

9    The Minister propounds two simple, and some more complex, answers to the claims of the minor children. The first simple answer propounded to the application is that in fact, a legal representative was appointed with effect to constitute the father in each proceeding the litigation representative of his minor children.

10    It is convenient to commence the judgment with this simple answer because it is an answer to the applications.

11    In proceeding 17, on 20 July 2017, a Registrar of the FCC made orders by consent, inter alia, appointing father 17 as litigation guardian of his minor daughters identified as the third and fourth applicants, BKW17 and BKX17, who were born in 2005 and 2010. The terms of the relevant order and its accompanying note were:

Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth), the first named applicant is appointed as the litigation guardian of his daughters, the third and fourth named applicants, born …2005 and …2010.

NOTE: the first applicant has consented to act as litigation guardian and does not appear to have any interest in these proceedings that is adverse to the litigant, being the third applicant.

12    There appears to have been an error in the note. It was and is not suggested that there was any adverse interest to the fourth applicant. We will proceed on the basis that the fourth applicant should be taken to be covered by the note to the order.

13    In proceeding 18, on 10 May 2018, the same Registrar made orders, again by consent, inter alia, appointing father 18 as litigation guardian of his minor son, the third applicant, born in 2016 and of his minor daughter, the fourth applicant, born in 2012. The terms of the relevant order and note were as follows:

Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth), the first applicant is appointed as the litigation guardian of his son, the third applicant (born …2016) and his daughter, the fourth applicant (born… 2012).

NOTE: The first applicant has consented to act as litigation guardian and does not appear to have any interest in these proceedings that are adverse to the litigants, being the third and fourth applicants.

14    Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), comprising rules 11.08, 11.09, 11.10 and 11.11, was and were in the following terms:

11.08 Person who needs a litigation guardian

(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

(2) Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.

11.09 Starting, continuing, defending or inclusion in proceeding

(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.

(2) The litigation guardian of a party to a proceeding:

(a) must do anything required by these Rules to be done by the party; and

(b) may do anything permitted by these Rules to be done by the party.

11.10 Who may be a litigation guardian

A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.

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.

15    There was no definition of the word “proceeding” in the Dictionary to the FCC Rules provided for by rule 1.04. There was, however, a definition of the word “proceeding” in s 5 of the then Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act), that the word “means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.”

16    This is the same definition of “proceeding” as appears in s 4 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

17    By para 13(1)(b) of the Legislation Act 2003 (Cth), unless the contrary intention appears, expressions used in any legislative instrument have the same meaning as in the enabling legislation as enforced from time to time. By para 8(8)(d) of the Legislation Act, however, rules of court or a compilation of rules of court are not legislative instruments. Notwithstanding this, s 13 of the Legislation Act is made applicable by para 81(3)(a) of the FCC Act whereby the Legislation Act (other than certain sections, importantly including s 8) applies in relation to the rules of court made by the FCC under the FCC Act as if a reference to a legislative instrument were a reference to a rule of court.

18    Thus, the power of the FCC under rule 11.11 and the consequences of the orders made by the Registrar under it are to be understood by the proper construction of the orders, the rule and the FCC Act. The Minister’s submission was that the appointment is to the position or office or responsibility of litigation guardian in the proceeding in the FCC and in a proceeding in a court in connection with the proceeding in the FCC including an appeal from the FCC. Thus, it is submitted that the fathers were the respective litigation guardians of the minor children in the appeal in this Court and in relation to the special leave applications in the High Court.

19    Whilst s 13 of the Legislation Act applies to the FCC Rules, the rules must nevertheless be such, on their proper construction, as to not exceed the authority given by subs 81(1) and (2) of the FCC Act, being:

81 Rules of Court

(1) The Judges, or a majority of them, may make Rules of Court:

(a) making provision for or in relation to the practice and procedure to be followed in the Federal Circuit Court of Australia (including the practice and procedure to be followed in registries of the Federal Circuit Court of Australia); or

(b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Federal Circuit Court of Australia; or

(c) prescribing matters required or permitted by:

(i) any other provision of this Act; or

(ii) any other law of the Commonwealth; to be prescribed by the Rules of Court.

(2) Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.

20    The question arises whether rule 11.11 construed by reference to the definition of the word “proceeding” in s 5 of the FCC Act has the meaning and content as submitted by the Minister and, if so, whether it is within para 81(1)(b) as being in relation to a matter or thing incidental to the practice or procedure to be followed in the FCC or necessary or convenient to be prescribed for the conduct or the business of the FCC.

21    The words of the rule affected by s 5 on their face are wide enough to appoint the person as guardian for any appeal: the father is appointed litigation guardian in the proceeding and in any incidental proceeding in connection with the proceeding, including in an appeal. The order confers a status or position upon the appointee, as well as duties.

22    There is undoubted convenience to the litigant and the Court (that is, the FCC) in the appointment continuing after the making of final orders by the FCC. The appointment enables instructions to be given for the purposes of considering an appeal and for the institution of an appeal that can only be done in the Federal Court of Australia (FCA) by the person’s litigation representative. The phrase “litigation representative” is defined in the Dictionary of the Federal Court Rules 2011 (Cth) as “a person who has been appointed for a proceeding, as a litigation representative…” (emphasis added). Such wording contemplates an already existing appointed legal representative. The FCA has power to remove and replace the litigation representative that has been appointed by the FCC (as litigation guardian).

23    Likewise in the High Court, the High Court Rules 2004 (Cth) envisage that a person may have been “authorised by or under any Act or any law of a State or Territory” to act as litigation guardian for a person under a disability: r 21.08.4. Such person shall be entitled to be a litigation guardian unless the Court or a Justice otherwise orders: r 21.08.4; and the Court or a Justice has power to appoint, remove or substitute a litigation guardian: r 21.08.6.

24    Thus, the words of the relevant FCC Rules pursuant to which the Registrar appointed the fathers litigation guardians of their minor children and the orders of appointment themselves were to a status, position or office that continued after the cessation of the FCC proceeding to any appeal.

25    Was such a rule within the power of the FCC and FCC judges? It was if encompassed by subs 81(1) of the FCC Act. This is a broad power. At its core is practice and procedure of the FCC. The power extends, however, to that which is in relation to that or anything incidental to it.

26    The appointment of a litigation guardian in the FCC for the proceeding in the FCC and for any appeal from the FCC (the FCC having no appellate jurisdiction of its own) can be seen to be necessary or convenient to the conduct of the business of the FCC being the determination of rights of the parties, including minors, before and by the FCC.

27    The appointment, of its nature, is one of a status, position and responsibility that is not limited to events in the FCC proceeding. The rule in question contemplates the appointment subsisting and continuing for and during any appeal, which has a clear connection to the business of the FCC in that the outcome of an appeal may be to affirm, vary or set aside an order of the FCC. The rule in question is beneficial and facultative: to allow those under a disability to vindicate their rights. Facilitating any appeal from a judgment of the FCC can be seen as incidental and convenient to the establishment of the right sought to be judicially recognised in the FCC, by correction of any error in, or by affirming the correctness of any exercise of, judicial power by the FCC.

28    There is no reason to consider that beyond the rule-making power in s 81 of the FCC Act.

29    After the hearing of the appeal, the Court invited additional submissions on the FCC Act and Rules. Submissions of the applicants were filed three weeks out of time. The Minister objected to their being taken into account. The submissions were less than coherent and superficially may perhaps be seen to raise some Constitutional question of significant opaqueness. The FCC Rules do not purport to, nor can they, bind the practice and procedure of the High Court. Such would be a question of construction and power, not Constitutional validity. No real Constitutional issue is truly present. The submissions otherwise take the issue no further than the matters with which we have dealt.

30    Thus, in each case, the four minors (being the four applicants for the extension of time) were represented by their fathers in the proceedings, including the appeal proceedings.

31    In both proceedings, the applicants sought, via submissions dated 24 May 2022 and 28 May 2022, to amend their proposed notices of appeal to seek leave to appeal from the consent orders made by the Registrar. Such leave should not be permitted. There is and was no basis to think, nor was any coherent submission put forward, that the fathers were not in a position to put the cases of their children without any adverse interest. This is only reinforced by the recognition that parents of children have the capacity to make decisions on behalf of their children: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15; 175 CLR 218 at 235–238 (Mason CJ, Dawson, Toohey and Gaudron JJ), 278, 289 (Brennan J), 293–294 (Deane J) and 315–316 (McHugh J); Re Woolley; Ex parte M276/2003 [2004] HCA 49; 225 CLR 1 at 40 [103] (McHugh J), including immigration decisions: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 [2003] HCA 1; 211 CLR 441 at 456–457 [28] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ).

32    No reason was raised or advanced as to doubt the appropriateness and efficacy of the making of the consent orders appointing the fathers as litigation guardians.

33    On this basis the proposed appeals would be incompetent and an abuse of process as an attempted re-litigation of past and finalised proceedings. Thus the extensions of time should be refused.

34    These conclusions make it unnecessary to deal with the complex and difficult arguments as to whether any extension of time and leave should be granted if there had not been a relevant appointment of the fathers as litigation guardians. Nor is it appropriate to deal with such matters unless necessary, given their importance and that they would be dealt with here by way of obiter dicta. This is all the more so in the light of the lack of clarity and focus, (indeed sometimes, with respect, a lack of coherence) of some of the arguments put on behalf of the applicants.

35    There was, however, another simple answer in proceeding 18. The minor children have never propounded any separate claim to that of their father. Their claims to protection were at all times, and are, derivative from their father’s claim and rest on the operation of the Migration Act. There is authority, with which we agree, that in such circumstances a litigation guardianship order is not necessary: BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [3] (Griffiths J).

36    The applications for an extension of time in which to file and serve a notice of appeal from the orders of the FCC should be dismissed.

37    Also, we should say, that Mr Taylor who appeared for the applicants, made some, indeed repeated, allegations of the most serious kind against the Minister that amounted to conscious wrongful conduct, at one point described as “cheating”. There was no factual or evidential basis for these assertions. There can be said to be some unanswered questions as to why certain documents were not produced at different times. But there was, and is, no basis, on the material before the Court, to consider that there has been any improper conduct by or on behalf of the Minister.

The interlocutory application in NSD2002/2019

38    It is necessary to say something of the interlocutory application filed in proceeding 17 by the applicants on 11 July 2022. With respect to the applicants’ solicitor, Mr Taylor, the conduct of both proceedings 17 and 18 was plagued by confusion at all points and multiple documents being filed, with no or limited leave being sought, after these matters were reserved by the Court. No prior leave was sought to file this application, though it was accepted for filing in order to reduce the costs of further applications to reopen.

39    The interlocutory application sought three orders, as follows:

1.    That the annexures to the Affidavit of Daniel Robert Taylor of 6 June 2022 being policy and procedural issues surrounding Enhanced Screening Process Interviews be admitted into evidence.

2.    That an alternative ground of appeal be allowed to be raised that the Circuit Court decision was affected by jurisdictional error because of the failure to appoint a litigation guardian in the Circuit Court proceeding for the second oldest sister of the applicants.

3.    That an alternative ground of appeal be allowed to be raised that the continuation of the litigation guardian orders into the Federal Court was materially affected by the failure of the First Respondent to provide the Enhanced Screening Process interview of the 4th Respondent (Applicants’ mother) to the Circuit Court or Federal Court on appeal.

40    The interlocutory application was supported by submissions filed on behalf of the applicants on 27 July 2022 (though dated 25 July 2022). We will deal with the substance of those submissions. Those submissions deal exclusively with proposed order 1 and, albeit indirectly, proposed order 3. Proposed order 2 was not addressed.

41    In relation to proposed order 2, leave ought be refused to raise the alternative ground of appeal concerning the failure of the FCC to appoint a litigation guardian for the second eldest sister of the applicants, that is second daughter 17. It appears that the second daughter 17 (who was born in May 1999) had reached 18 years of age at the time the Registrar made the orders referred to at [11] above on 20 July 2017 appointing her father as litigation guardian for the two minor applicants. She was an adult when an amended originating application (upon which the case in the FCC was conducted) was filed in the FCC (on 30 August 2017) and when the FCC heard the matter and handed down its reasons for decision. She was an adult at the time the appeal was commenced in the Federal Court. That appeal was refused. Special leave to the High Court was refused. The second daughter 17 is not herself an applicant to the present application, though she is the fourth respondent (the applicants’ mother being the fifth respondent). This ground of appeal was not raised in the course of the two days of oral argument in the present proceedings before this Court. It was not addressed in submissions in support of the application. These matters and the principle of finality and the surrounding facts as to the second daughter 17 reaching her majority demand that leave be refused.

42    In relation to proposed order 3, leave ought be refused to raise the alternative ground of appeal concerning the Minister’s alleged failure to provide the Enhanced Screening Process (ESP) interview of the applicants’ mother in proceeding 17. The submissions advanced on the part of the applicants make general, un-particularised assertions in respect of the Minister’s alleged practice of failing to provide records of ESP interviews to the Court. The submissions are not directed with sufficient clarity to any alleged failure to provide a specific ESP interview in the context of proceeding 17 and do not explain the significance of any such alleged failure to the applicants’ case.

43    Proposed order 1 should be refused. In their submissions filed in support, the applicants sought leave to file and serve not only the materials annexed to the affidavit of Mr Taylor dated 6 June 2022, but also a subsequent affidavit of Mr Taylor filed on 19 July 2022 annexing further information in relation to the ESP program. The applicants’ reasons for seeking such leave were not clearly expressed. The submissions in relation to the ESP process were, in the main, put at a general level, and relied in part upon the Court’s power of judicial notice. The submissions were not directed with any clarity as to why the applicants should be granted leave to move on the application and did not demonstrate why the issues canvassed in the submissions were of assistance to the applicants in this particular case.

44    The interlocutory application is accordingly refused.

45    The applications for extensions of time and leave to amend the draft proposed notices of appeal, and the interlocutory application in proceeding 17, should be dismissed. The Minister’s costs should be paid. The parties should be given the opportunity of putting on short submissions as to costs, including who should pay them in circumstances where the applicants in each proceeding are minors.

Associate:

Dated: 20 January 2023