FEDERAL COURT OF AUSTRALIA

Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 985

MIGRATION – non-citizen child – judicial review proceedings – whether child may proceed without tutor or next friend – position of pro bono counsel – circumstances under which assistance may cease – question of exposure to costs

PRACTICE AND PROCEDURE – whether a tutor is required for proceedings commenced under Part 8 of the Migration Act

Migration Act 1958 (Cth)

Immigration (Guardianship of Children) Act 1946 (Cth) s 6, s 4AAA

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules O 43, O 8, O 6, O 7

X v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 583 cited

Myers v Nominal Defendant [1966] 1 NSWR 659 at 668 cited

Dey v Victorian Railway Commissioners (1949) 78 CLR 62 cited

Haines v Leves (1987) 8 NSWLR 442 at 449-451 cited

Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 cited

SYED MEHDI JAFFARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W145 OF 2001

CHAMAN ALI HAIDER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W154 OF 2001

FRENCH J

26 JULY 2001

PERTH

THE COURT ORDERS THAT:

1.         The proceedings may continue without the appointment of a tutor or next friend.

2.         The Respondent shall not seek any order for costs against any legal representative of the applicant by reason of such representation on the basis of want of capacity on the part of the applicant.

3.         The hearing of the application fixed for 8 August 2001 will be varied to 5 September 2001 in order to enable applications for legal aid in relation to cognate proceedings in the Supreme Court of Western Australia concerning the appointment of legal representatives to be pursued.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.         The proceedings may continue without the appointment of a tutor or next friend.

2.         The Respondent shall not seek any order for costs against any legal representative of the applicant by reason of such representation on the basis of want of capacity on the part of the applicant.

3.         The hearing of the application fixed for 8 August 2001 will be varied to 5 September 2001 in order to enable applications for legal aid in relation to cognate proceedings in the Supreme Court of Western Australia concerning the appointment of legal representatives to be pursued.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:                  CHAMAN ALI HAIDER

                                        APPLICANT

AND:                              MINISTER FOR IMMIGRATION AND MULTICULTURAL

                                        AFFAIRS

                                       RESPONDENT

REASONS FOR DIRECTIONS

1                     There are two applications before the Court by two young males, each of whom claims to have fled to Australia from Afghanistan.  Each has applied for and been refused a protection visa by a delegate of the Minister for Immigration and Multicultural Affairs and each has been unsuccessful in an application for review to the Refugee Review Tribunal.  The Tribunal’s decision with respect to Mr Jaffari was given on 15 March 2001. The decision with respect to Mr Haider was given on 23 March 2001. 

2                     Mr Jaffari filed an application for an order of review of the Refugee Review Tribunal decision in this Court on 3 May 2001 and Mr Haider, on 8 May 2001.  In each case the Minister filed a notice of objection to competency on the basis that the application for an order of review was lodged more than twenty eight days after the applicant had been notified of the Tribunal decision and that the Court thereby lacked jurisdiction to review the decision.

3                     Standard directions were given on 8 June for the filing of various documents.  On 14 June, a referral of each matter to the pro bono panel was made under O 80 r 4.  The referral was for advice and, if appropriate, representation at the hearing of the application.  A practitioner agreed to act for each of the applicants.

4                     The hearing of each application was listed for 10 July.  Shortly prior to that date, however, the applicants’ legal representative sought leave under O 80 to withdraw.  When the matter came on for hearing, the applicants were unrepresented.  They participated by video link.  The position with their pro bono lawyer was explained and they were advised that the Court would endeavour to arrange for alternative legal representation.  In the event the matter was relisted for 8 August. 

5                     Dr JL Cameron agreed to provide assistance under O 80.  However at a directions hearing on 24 July he indicated his wish to withdraw on the basis that the Minister is by statute legal guardian of one, if not both, of the applicants and has responsibility for appointing next friends in whose name they can bring proceedings.  He advised the Court that an application has been made to the Legal Aid Commission in each case for assistance.  Proceedings have been or were about to be instituted in the Supreme Court under the Legal Representation of Infants Act 1977.  These proceedings, it was said, could lead to a legal representative or a next friend being appointed for the purpose of the review proceedings in this Court.  

6                     Mr Jaffari’s date of birth is shown in the initial questionnaire completed by an officer of the Department, upon his arrival in Australia, as 1985.  He was then said to be 15 years old.  The Refugee Review Tribunal accepted the statement of his age and described him in its reasons as appearing to be “unsophisticated and somewhat overawed by his current situation”.  The record of Mr Haider’s initial interview showed 1982 as his year of birth.  That year also appeared as the year of birth in his application for a protection visa which was evidently completed with the aid of a representative based in Melbourne.  Dr Cameron has nevertheless expressed some doubt as to the accuracy of the year shown on these documents. 

7                     The question arises about the nature of the Minister’s responsibility with respect to unlawful non-citizens who are minors and what, if any, effect it has on the conduct of this case and on the provision of representation for such persons.  The position adopted by counsel for the Minister was simply that the matter should proceed to hearing with or without legal representation for these two applicants.

The Rules of Court – Persons under Incapacity

8                     Order 43 of the Federal Court Rules provides, inter alia:

“1(1)  An infant or minor may sue by his next friend.

1(2)  An infant or minor may defend in a proceeding by his guardian appointed for that purpose.

…

2(1)  The Court may, on motion by a party to a proceeding or any other person, appoint a tutor for a person under disability for the purpose of the proceeding.

2(2)  A person moving for an appointment under this rule shall, unless the Court otherwise orders, serve notice of the motion on the person under disability.”

There is provision for the Court to remove a tutor and to stay a proceeding until appointment of a tutor in place of the tutor removed (O 43 r 3).  An order appointing a tutor is not necessary (O 43 r 4(1)).  A person may not be a tutor of a person under disability in any proceeding in which he has an interest adverse to the interest of the person under disability       (O 43 r 4(3)).  Where a person under disability is a party to proceedings anything which would, if he were not a person under disability, be required or authorised by the Rules to be done by him shall or may be done by his tutor who must act by a solicitor (O 43 r 5).

Statutory Framework

9                     Under the provisions of the Immigration (Guardianship of Children) Act 1946 (Cth) the Minister for Immigration is the guardian of non-citizen children.  This is provided in s 6:

“6.  The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.”

10                  The term “non-citizen child” is defined in s 4AAA, which provides:

“4AAA(1)  Subject to subsections (2) and (3), a person (the “child”) is a non-citizen child if the child:

(a)       has not turned 18; and

(b)       enters Australia as a non-citizen; and

(c)        intends, or is intended, to become a permanent resident of Australia.

     (2)  Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:

(a)       a parent of the child; or

(b)       a relative of the child who has turned 21; or

(c)        an intending adoptive parent of the child.

     (3)  Subsection (1) does not apply if:

(a)       the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the “adult”); and

(b)       a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and

(c)        the adult intends to reside with the child in a declared State or Territory.

     (4)  A person is a non-citizen child if:

(a)       the person has not turned 18; and

(b)       a direction under s 4AA is in force in relation to the person.”

Section 4AA provides for a minor who enters Australia as a non-citizen in the charge of, or for the purpose of living in Australia under the care of, a relative of the person where the child intends to become, or is intended to become, a permanent resident of Australia.  In such a case the Minister, if satisfied that it is necessary in the interests of the child to do so, may direct in writing that the child be the Minister’s ward.  This must be done with the consent of the relative.  A non-citizen child is not to leave Australia except with the consent in writing of the Minister who shall not refuse to grant any such consent unless satisfied that its grant would be prejudicial to the interests of the non-citizen child (s 6A).  This section, however, does not affect the operation of any other law regulating the departure of persons from Australia (s 6A(4)).  The Minister may place a non-citizen child in the custody of a person who is willing to be the custodian of the child and is, in the opinion of the Minister, a suitable person to be that custodian (s 7).  The Act does not affect the operation of any provision of laws of any State or Territory relating to child welfare (s 8).  There is provision for exemption of certain children or classes of children from the Act by ministerial order (s 11).  No such order has been referred to by counsel for the Minister in the present case.

The Rules of Court – Pro Bono Legal Assistance

11                  Also relevant for present purposes is O 80, relating to Court appointed referral for legal assistance.  The purpose of O 80 is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.  It is not intended to be a substitute for legal aid.  Order 80 r 4 provides:

“4(1)  The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance.

4(2)  For subrule (1), the Court or Judge may take into account:

(a)       the means of the litigant; and

(b)       the capacity of the litigant to obtain legal assistance outside the scheme; and

(c)        the nature and complexity of the proceeding; and

(d)       any other matter that the Court, or Judge, considers appropriate.

4(3)  A referral to the Registrar is effected by the issue of a Referral Certificate in accordance with Form 161 in relation to the litigant.

4(4)  If a Referral Certificate has been issued, the Registrar must attempt to arrange for the legal assistance mentioned in the certificate to be provided to the litigant by a legal practitioner on the Pro Bono Panel.

4(5)  However, the Registrar may refer a litigant to a particular legal practitioner only if the practitioner has agreed to accept the referral.”

The kinds of assistance covered by referrals may include advice, representation at any stage of the proceeding, the drafting or settling of documents and representation generally.  The obligations upon a practitioner who accepts a referral are defined, in part, by Rules 6 and 7 of Order 80 which provide:

“6.  Subject to rule 7, if a legal practitioner agrees to accept a referral, the practitioner must provide assistance to the litigant in accordance with the referral.

7(1)  A legal practitioner who has agreed to accept a referral may cease to provide legal assistance to the litigant only:

(a)       in the circumstances set out in any practice rules governing professional conduct that apply to the legal practitioner; or

(b)       with the written agreement of the litigant; or

(c)        with the leave of the Registrar.

7(2)  If a legal practitioner ceases to provide legal assistance to a litigant, the practitioner must inform the Registrar in writing within 7 days.”

12                  Rule 8 provides for applications by legal practitioners to the Registrar for leave to cease to provide legal assistance.  An application for leave to cease to provide legal assistance under O 80 r 8 is confidential and is not part of the proceeding in relation to which the referral was made and does not form part of the Court file in relation to that proceeding.  In that case should counsel consider that he is unable to continue to act for Mr Haider any cessation of assistance must be based upon one or other of the grounds set out in O 80 r 7.  The power to grant leave to cease to provide legal assistance under O 80 r 7(1)(c) cannot be exercised by a Judge.  This is apparent when reference is made to O 80 r 8.  It contemplates that the application for such leave is confidential and is not part of the proceeding.  This enables such an application to be made on the basis, for example, that certain advice has been given to a litigant and that the litigant has chosen not to accept that advice, or that the case is hopeless and that the litigant would not benefit by continued legal representation.  These are matters which, of course, should not be brought to the attention of the trial judge.

Consequences of Minority for the Conduct of this Case

13                  So far as Mr Haider is concerned, it is arguable that the application can proceed on the basis that he is over 18 years of age, that he is not an infant for the purposes of O 43 and that he is not a person to whom the Immigration (Guardianship of Children) Act 1946 applies.  The record of his application, in the preparation of which he was assisted by a representative,  so indicates.  The Tribunal also proceeded on that basis.   Nevertheless, Dr Cameron has raised a serious question as to the reliability of the stated year of birth and I proceed on the basis that this may be a debatable question.  Mr Jaffari is certainly a minor and it is clear that the Minister cannot act as his tutor because he has an interest adverse to him.  Nor could he do so if Mr Haider were shown to be a minor.

14                  The first question is whether an infant can take review proceedings under the Act without a tutor or next friend.  North J considered related questions in X v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 583.  As his Honour observed in that case, O 43 does not impose a requirement on a minor to sue by a next friend.  It is facultative.  The common law prescribes such a requirement – Myers v Nominal Defendant [1966] 1 NSWR 659 at 668; Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 83.  But where jurisdiction is statutory, the statute may expressly or by implication displace the common law rule – Haines v Leves (1987) 8 NSWLR 442 at 449-451. 

15                  In X v Minister for Immigration and Multicultural Affairs, the infants concerned were bringing judicial review proceedings and contempt motions against the Minister relating to the circumstances of their removal from Australia and their return into detention.  They also instituted guardianship applications requiring the Minister to release them from detention and to make arrangements for their care and welfare in the community.  They were released by agreement and the guardianship applications were amended accordingly to seek declarations and orders relating to their care and welfare.  The Minister brought motions to strike out the contempt motions and the guardianship proceedings on the basis that the applicants lacked capacity.  The point was not pressed in respect of the judicial review proceedings.

16                  After considering the International Convention on the Rights of the Child, North J said at par [43]:

“The responsibilities of a guardian under s 6 of the Act include the responsibilities which are the subject of the [Convention on the Rights of the Child].  They are responsibilities concerned with according fundamental human rights to children.  So much is recognised by the terms of the Human Rights and Equal Opportunity Commission Act previously referred to.  Once it is recognised that the rights with which s 6 is concerned are in the nature of fundamental human rights it becomes clear that parliament intended that if a non-citizen child were denied any of these fundamental rights, they would have access to the legal system with the minimum of formal hurdles.  Without an express requirement for a tutor to be appointed it should be concluded that parliament intended no such procedural impediment would necessarily stand in the applicant’s way.”

And specifically in reference to unaccompanied non-citizen minors, his Honour said at par [46]:

“Being a non-citizen child will often mean that the applicant will have had no previous connection with Australia prior to entry.  The present case is a good example of this feature.  It is hard to imagine two persons less likely to be able to find a tutor than the applicants.  They have no connection with Australia.  This country chanced to be the place at which the ship on which they stowed away happened to stop.  The fact that the applicants do not speak English exacerbates their strangeness, and further increases their difficulty in finding a person to act as tutor.”

His Honour held that the context and purpose of s 6 of the Act demonstrate that a non-citizen child seeking to enforce the duties of a guardian is not necessarily required to sue by a guardian.  He also held that s 6 of the Act and s 39B(1A)(c) of the Judiciary Act confer on the Court a jurisdiction to supervise the Minister’s functions. 

17                  The Migration Act and Regulations do not provide a cohesive and comprehensive scheme which makes clear the position of children and infants, in particular, to apply for  protection visas in their own right or be added to an application of a parent and the position of the child at the various stages of administrative decision-making and review – Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313.  The Full  Court in that case did not determine the question.  Their Honours did observe that in terms any person (whether a child or not) can apply for a visa under s 45 and that s 46 which specifies what is a valid visa application does not in terms preclude the making of an application by an infant.  Nor does Division 2.2 of the Migration Regulations in terms limit who may make an application, although reg 2.07 provides that the form is to be completed by the applicant.  It is to be noted that in that case the question whether a child could apply for a visa was not directly raised in the appeal. The child in question was three months old.  There is nothing therefore in the judgment of the Full Court which precludes me from determining the question of the capacity of a minor for the purposes of judicial review proceedings. 

18                  In my opinion the principle informing North J’s approach to guardianship applications based upon s 6 of the Immigration (Guardianship of Children) Act, applies with equal if not greater force to applications for judicial review of decisions relating to whether a minor claiming to be a refugee should be granted a protection visa.  The grant of such a visa raises questions of Australia’s protection obligations under the Refugee Convention and in particular the obligation of non-refoulement under Article 33 of that Convention.  The obligations are serious ones and the outcomes, if they are not honoured, may be most serious for the person wrongly returned to a place in which he or she may be persecuted.  The fact that a person is a minor should not be seen, of itself, as imposing any procedural barrier to invoking the legal processes necessary to establish that the person is a refugee and entitled to protection.  There can be no gloss upon the jurisdiction of the Court conferred by Part 8 of the Migration Act which prevents it from dealing with such an application simply because the applicant is a minor.  That is not to say that in an appropriate case such as that of a child of tender years, an order should not be made providing for the appointment of a tutor or a next friend.  In my opinion, however, that is not shown to be necessary here.  Both applicants suffer from the disadvantages common to many non-English speaking non-citizens who arrive in Australia claiming asylum.  Those disadvantages include lack of understanding of the administrative and legal processes which they invoke.  That common problem is a difficult one which administrators and courts must deal with as fairly and as efficiently as they can. 

19                  In my opinion, the fact that Mr Jaffari is a minor does not require the appointment of a tutor for the continuation of his proceedings.  A fortori and notwithstanding his counsel’s concerns, there is no such necessity in respect of Mr Haider.

20                  That is not to say that counsel for the applicants is obliged to continue to represent them notwithstanding discomfort about continuing to do so having regard to the view which he has formed of the Minister’s obligations.  I do not think that the occasion has arisen under O 80 r 7(1)(a) or (b) by which he should cease to provide assistance.  It is, however, open to him to make application to the Registrar under O 80 r 8.  If there are alternative sources of representation which are funded by the Legal Aid Commission or if pro bono counsel is able to be briefed on a properly funded basis by the Legal Aid Commission, there could be no impediment to his ceasing to act under O 80.

21                  Certainly no representative of the applicants should be exposed to any risk of costs on the basis that they lack capacity to instruct counsel.  I am prepared to make an order to secure that result.

22                  I will make directions necessary to give effect to these reasons.

Associate:

Dated:              26 July 2001