Akpata v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal from a decision of Lander J given on 14 July 2004. The application was made on 21 September 2004 so the notice of appeal was not filed and served within the 21 day period prescribed by O 52 r 15 of the Federal Court Rules. Under O 52 r 15(2) the Court may, in certain circumstances, grant the extension of time which is sought. The principles upon which an extension of time is granted are discussed in the decision of Jess v Scott (1986) 12 FCR 187 at 195. 2 Both the applicants and the respondent were content to identify two main considerations to the exercise of the discretion whether or not to extend time: first, the reasons for the proposed appeal not having been instituted within the prescribed time, and secondly whether there is some prospect of success or some arguable case to be presented on the proposed appeal. The respondent further contended that it was relevant, in this matter, to determine whether there was any utility in the putative appeal, whatever its outcome. 3 The second named applicant Stephen Akpata (Mr Akpata) is the husband of Fortress Akpata (Mrs Akpata) and the father of Treasure and Precious Akpata. He clearly has the running of the application. He appeared in person on behalf of all the applicants at the hearing before Lander J, and on this application. 4 Mr Akpata deposed to the fact of simply having overlooked the time limit applicable to an appeal from the decision in respect of which an extension of time for appeal is sought. He has not been cross-examined. Indeed the respondent did not make submissions to suggest that I should not accept his explanation. In those circumstances, I do not think there is anything in the delay in instituting the proposed appeal which tells in any significant way against the exercise of the discretion to extend the time within which to appeal. It was an oversight on his part, on behalf of his family. It is not suggested to have caused any injustice or inconvenience to the respondent. 5 Principally, the issue is whether there is any arguable case on the proposed appeal which warrants the matter being permitted to proceed to the Full Court. If it does, in my judgment, it will be appropriate to extend the time within which to appeal to enable the applicants to proceed with their appeal. Those comments are subject to one further observation. At the completion of the reasons for judgment of Lander J, his Honour expressed the view that the application, from which leave to appeal out of time is sought, is itself somewhat futile. As noted, the respondent contends that the appeal itself, if leave is granted, would be futile so the extension of time should not be granted. The reason for that emerges from the history of the application giving rise to the present application. 6 Mr Akpata and Mrs Akpata together applied on 26 July 1999 for a Parent (Migrant) (Class AX) visa. They were sponsored by their daughter Treasure Akpata, who is a New Zealand citizen. The application by Mr Akpata was refused by the respondent on 11 June 2002, acting under s 501 of the Migration Act 1958 (Cth) (the Act). That is, the application was refused on 'character grounds'. The consequence was that the bridging visa then held by Mr Akpata was also cancelled (s 501F(3)) and he became an unlawful non-citizen and was taken into immigration detention. Ultimately, on 25 March 2004 the Full Court of this Court set aside the decision refusing Mr Akpata's application for a parent visa: Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65. The respondent was ordered to reconsider Mr Akpata's application for a Parent visa. Such reconsideration has not yet been completed. It is unclear whether the respondent, therefore, proposes to revisit the decision on the basis of s 501 of the Act. 7 Mr Akpata's application for a Parent visa is extant. It may be granted. It may be refused, including on character grounds. Its outcome is yet to be determined. 8 In the meantime, following the rejection of the application for a Parent visa by Mr Akpata, on 18 December 2002 a delegate of the respondent refused the application on the part of Mrs Akpata and Precious Akpata. Migration regulation 103.227(1)(a) states that each member of the family unit of the applicant who is an applicant must be a person who satisfies public interest criterion 4001. Public interest criterion 4001 states in part that the respondent has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test. As the respondent had refused Mr Akpata's application for a parent visa under s 501 of the Act, Mr Akpata did not satisfy public interest criterion 4001. Consequently, as the criteria for the grant of a Parent visa Subclass 103 required that each member of the family unit must satisfy public interest criterion 4001, the failure of Mr Akpata to satisfy that criterion meant that the other members of the family unit also could not satisfy the requirements to be granted the visa. The delegate could not therefore be satisfied that the requirements of migration regulation 103.227 were met. The applications by Mrs Akpata and Precious Akpata were refused. 9 Although that decision flowed from the application of the Migration Regulations 1994 (Cth) (Migration Regulations), and did not involve any separate assessment on the merits of the application by Mrs Akpata and Precious Akpata, Mrs Akpata sought review of the decision before the Migration Review Tribunal (the Tribunal). The application for review before the Tribunal was made on 10 February 2003. It then confronted procedural obstacles. 10 Section 347(1) of the Act requires that any application for review be made in the approved form, and be given to the Tribunal within the prescribed period and be accompanied by the prescribed fee. The application was within time. The prescribed fee was not paid. However, the fee for making an application for review to the Tribunal may be waived if payment of the fee has caused or is likely to cause severe financial hardship to the review applicant: Regulation 4.13(4). At the time of lodging the application, Treasure Akpata also applied for a fee waiver. She provided information in support of that application. Apart from an acknowledgment of 24 March 2003, the information before me does not suggest any further action was taken in relation to the application for some months. On 14 January 2004 an officer of the Tribunal sought further information from Treasure Akpata in relation to the fee waiver application. A response was sought within seven days. No response was received. On 6 February 2004, an officer of the Tribunal informed Treasure Akpata that, after considering all the material, the fee waiver was not granted because that officer was not satisfied that payment of the fee had caused or was likely to cause her severe financial hardship. It indicated that the review application could proceed provided the $1400 fee was paid within a reasonable time. Generally, the Tribunal regarded that period of time as 14 days. The Tribunal invited any submission if, for some reason, 14 days was not regarded as reasonable in the particular circumstances. A letter in similar terms was sent to Treasure Akpata on 9 February 2004. On 1 March 2004 the same officer repeated that decision (in terms which suggested that it had not been made in the first place) and provided reasons for it. 11 On 26 March 2004 the final letter was sent to Treasure Akpata. It informed her that the application for review 'is ineligible', as the applicable fee was not paid within a prescribed time. It recited the earlier correspondence. The letter was apparently accompanied by a document entitled 'Advice of Eligibility Decision' confirming the decision that the application for review of a refusal of a 103 visa was ineligible for the following reason: 'Paragraph 347(1) of the Migration Act 1958 requires that an application for review is accompanied by the fee and that the application for review is made within the prescribed period. The application for review is ineligible, as the fee was not paid within a prescribed time and a fee waiver application has not been lodged.' As Lander J pointed out, the two documents are contradictory. The letter indicates ineligibility because the application fee was not paid within the prescribed time, and the advice contains the reason that the fee was not paid within the prescribed time and that (contrary to the clear fact) a fee waiver application had not been lodged. However, the operative reason for the decision was regarded by Lander J, as it clearly was, as the fact that the application for review was not supported by the applicable fee paid within a reasonable time. 12 It was the decision that the application to the Tribunal was 'ineligible' for failure to comply with s 347(1) which was sought to be reviewed before Lander J. The application for review to the Court did not concern the decision of the officer of the Tribunal not to grant a fee waiver to Treasure Akpata. 13 Lander J followed the decision of the Full Court (Wilcox, Weinberg and Stone JJ) in Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364 at 375, [51] that: '… s 347(1) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the [Tribunal] is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.' That case decided that the applicant for review should be given the opportunity to pay the fee within a reasonable time after the waiver request was rejected. The Tribunal proceeded on that basis. 14 The attacks upon the Tribunal's decision as argued before Lander J were that the decision was 'beyond power', that there was a denial of natural justice' and that 'procedures governing/relating to the review of decision was [sic] not observed'. The only evidence adduced was an assertive affidavit of Mr Akpata which made two points. One was to assert that a right to a hearing had been denied. The other is clearly without merit, as Lander J determined. It was that, by reason of the Full Court decision concerning Mr Akpata referred to in [6] above, somehow the delegate's decision of 18 December 2002 and the Tribunal's decision were null and void. As his Honour pointed out, the later decision of the Full Court meant that the 'facts upon which the delegate's decision were based have changed but the decision does not make the delegate's decision null and void'. In my view, that conclusion is clearly correct. It reflects the decision of the Full Court in Lesi v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 420; [2003] FCAFC 285 (Lesi). No argument on the application for an extension of time to appeal was presented that the Full Court decision in Lesi should not be followed. It would not, therefore, be appropriate to extend time to appeal to enable the second point argued at first instance to be presented to the Full Court. 15 The primary issue argued before Lander J was whether the applicants were denied procedural fairness. His Honour noted there was no evidence to support that claim. The course of correspondence did not suggest any such failure. His Honour concluded that there was no legal error on the part of the Tribunal in concluding, as and when it did, that because the fee had not been paid by the time ultimately specified after refusal of the fee waiver application, the application was ineligible for its consideration by reason of s 347(1). His Honour refused to adjourn the application to permit Mr Akpata to adduce evidence of the financial information submitted to the Tribunal, and that Treasure Akpata was outside Australia in January to March 2004 and so did not receive the correspondence referred to. 16 The proposed notice of appeal asserts, as the grounds, firstly an unspecified error of law, and secondly an error of law by dismissing the application notwithstanding the Full Court order setting aside the refusal of Mr Akpata's application, referred to in [6] above. I have dealt with the second alleged error of law. In my view there is no basis shown why it should be permitted to be raised before the Full Court in the circumstances. 17 The first alleged error of law was, in oral submissions and in later written submissions, said to be based upon the refusal at first instance of the adjournment application, and the asserted failure by the Tribunal to give Treasure Akpata the opportunity to be heard before declaring the application 'ineligible' for consideration. 18 There was no evidence adduced to show what evidence might have been provided if the adjournment sought had been granted. There is therefore, still, no material upon which the Full Court could be satisfied that Treasure Akpata did not receive the correspondence sent to her by the Tribunal. And even if there were evidence that Treasure Akpata did not receive that correspondence, the respondent asserts (and there is nothing to gainsay the assertion) that the Tribunal's correspondence was sent to her at her address as provided to the Tribunal and is deemed to have been received by her seven working days after its despatch: s 379C(4) of the Act. Consequently, I do not consider that, on the material in support of the application for an extension of time to appeal, there is shown to be any real prospect of the appeal succeeding. There is no evidence that, if the adjournment sought had been granted, it would have been established that Treasure Akpata was out of Australia between January and March 2004. Even if Treasure Akpata were out of Australia, there is no material to suggest that, by reason of the operation of s 379C(4), she was not deemed to have received the communications from the Tribunal in any event. Once she is deemed to have received them, she could not show that she had no reasonable opportunity to have responded to them. 19 There is a further reason why an extension of time to appeal should be refused. The application on behalf of Mrs Akpata failed directly because Mr Akpata did not satisfy public interest criterion 4001. The decision that he did not do so has been set aside. The respondent is presently reconsidering the application on his behalf. If his application again fails, on character grounds, inevitably the application for Mrs Akpata must also fail: Reg 103.227(1)(a) of the Migration Regulations. If his application is successful, the respondent has acknowledged that provided Mrs Akpata and Treasure Akpata meet the prescribed secondary criteria, they too would be entitled to the grant of a Subclass 103 Parent Visa. To date there has been no adjudication as to whether they meet those secondary criteria, but there is no apparent reason at present why they might not do so. Consequently, in my judgment, at present, the appeal which is sought to be pursued will have no utility. The outcome of the Parent visa application on behalf of Mrs Akpata will ultimately stand or fall with the Parent visa application of Mr Akpata. I think that reason above is sufficient to refuse an extension of time to appeal. 20 Finally, I note that in any event the present application may be irregular. Although Mr Akpata is one of the applicants, his Parent visa application has followed another course and is still to be determined. Treasure Akpata is a minor. Under O 43 of the Federal Court Rules, she was required to apply to the Court by her next friend: O 43 r 1(1). As the respondent took no point about that, and also did not object to Mr Akpata appearing on her behalf before Lander J, his Honour sensibly dealt with the application on the merits. 21 At common law a minor cannot generally bring an action on his or her own without a friend or tutor; see for example Myers v Nominal Defendant [1966] 1 NSWLR 659 (Myers) and Dey v Victorian Railways Commissioners (1949) 78 CLR 62. A 'tutor' is defined in O 1 r 4 as 'a next friend, guardian ad litem … of a person under disability'. A 'person under disability' includes an infant and a minor. 22 In Myers Isaacs J stated at 668: 'It is abundantly clear from these authorities that the common law position always has been and still is that an infant cannot make any application to a court without the intervention of a next friend. In Dey v. Victorian Railway Commissioners (1949), 78 C.L.R. 62, Latham, C.J., at p. 83, said: 'An infant cannot give authority to institute proceedings so as to bind himself and that is one of the reasons why a next friend is required', and at p. 100, Dixon J., said: 'The infants are under a disability depriving them of the power of employing an attorney or other agent.'' 23 The common law may be varied by statutory provisions: see Haines v Leves (1987) 8 NSWLR 442 at 449-451 and SFTB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 108. In X v The Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524 (X) North J considered the situations of individuals 'X' and 'Y' who were under 18 when they arrived in Australia as 'stowaways'. His Honour held that O 43 r 1 does not itself impose a requirement that minors sue by their next friend, but that the rule exists to facilitate any such requirement imposed by statute or common law. In those particular circumstances, his Honour found that it was in the best interests of the minors that the appointment of a tutor not be required. In Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29 (Odhiambo) the Full Court (Black CJ, Wilcox and Moore JJ) for the reasons given by North J in X, held that it was competent for a minor to seek review of the decision of a delegate of the respondent in the Refugee Review Tribunal (RRT), and then to seek review of the RRT's decision in this Court without the involvement of a next friend. In Jaffari v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 10 French J also held that proceedings brought by minors under the Act could continue without the appointment of a friend or tutor. 24 Those situations differ from what the current circumstances. The present case concerns not a minor seeking to bring an action on her behalf, but an adult (the minor's father) seeking to make himself his daughter's 'friend'. 25 In SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 552 (SBAH)the Full Court considered the situation of a minor in whose name and for whose benefit his adult mother commenced proceedings without the Court having assigned to the mother the position as the appellant's 'friend'. The appellant was represented before the primary judge, who dismissed his application with costs. The appellant's mother then purportedly filed a notice of appeal on behalf of the appellant. On the day before the Full Court there was no appearance for the appellant. Counsel for the respondent sought that the matter be dismissed under O 52, r 38A (as well as under a notice of motion previously filed). In discussing the 'appointment' of the appellant's mother as his tutor, the majority (Emmett and Conti JJ) stated at 558, [29]: 'Since an infant cannot give binding authority, any proceeding commenced in the name of an infant will be commenced without the authority of that infant. An infant cannot give authority to institute a proceeding so as to bind herself or himself. Infants are under a disability depriving them of the power of employing an attorney or other agent. Thus, an infant will not be prejudiced by a proceeding commenced on his or her behalf unless some step is taken to ensure that the proceeding is commenced and prosecuted with authority - see Dey v Victorian Railways Commissioners 78 CLR 62 at 83 and 100.' Their Honours concluded that the appellant's mother in those circumstances was not his 'friend'. At 559, [33] they stated: 'While the appeal in this case was purportedly filed by the Appellant's mother on his behalf, she had not been appointed as tutor under the Federal Court Rules. That does not render the appeal a nullity. It simply means that the outcome of this proceeding will not bind the Appellant. His mother had no authority to act as his agent or represent him in connection with the proceeding. Further, she could only act as tutor through a solicitor. There has been no solicitor involved in the proceeding on behalf of the Appellant since the order dismissing the application made by the primary judge.' 26 Where a friend has not been validly appointed the application is not void ab initio, but instead is 'voidable'. Newton J in R v Danaher; Ex parte Olzier Industries Pty Ltd [1969] VR 445 at 446 dealt with this issue. '… it is also established that if proceedings are begun in a superior court in the name of an infant but without a next friend, they are not a nullity: this is so even if there are rules of court which specifically require an infant to sue by a next friend. Although the court may set aside the proceedings and order the plaintiff's solicitors to pay the defendant's costs of the action, the court may instead, in its discretion, give leave to amend the proceedings by adding a next friend [citations omitted]. The principles established by these cases are not, in my opinion, affected by the decision of the High Court in Dey v Victorian Railways Commissioner (1949) 78 CLR 62. I regard that decision as simply establishing that if proceedings are brought in the name of an infant, but the requirements regarding the appointment of a next friend are never complied with, then the infant will not be bound by the decision in the proceedings.' 27 This second point accords with the following statement of Madgwick J in SBAH at 553, [1]: 'Emmett and Conti JJ have analysed the legal position of a child in whose name legal proceedings are commenced and (subject to appeals) concluded, without a court having deliberately assigned carriage of the child's case to an apparently well-motivated and responsible adult by the "next friend" or "tutor" procedure. The result of such analysis appears to be that if the proceedings terminate in the child's favour, the child may have the benefit of that. If, however, the proceedings result in the rejection of some right, privilege, power or benefit claimed for the child, the child may not be held to that result unless, as an adult, he or she does not seek to disturb the adverse result. Such a position appears to me to accord with principle.' 28 I consider it appropriate, to the extent necessary, to regularise the position. Mr Akpata has clearly indicated he consents to act as the next friend of Treasure Akpata. She has sworn an affidavit on 11 November 2004 appointing Mr Akpata as her next friend. Mr Akpata clearly has the running of his, and his family's, visa applications and related proceedings on behalf of the family. As noted earlier, it was his oversight which (he said) was the reason the proposed appeal was not instituted on time. There is no actual or potential conflict of interest between Mr Akpata on the one hand and Treasure Akpata on the other. 29 I therefore appoint Mr Akpata as the next friend of Treasure Akpata for the purpose of the present application to extend the time within which she may appeal from the decision of Lander J given on 14 July 2004. To the extent necessary, I dispense with compliance with the Rules concerning the formal steps by which such an appointment is normally made. 30 As indicated, I refuse the application for an extension of time within which the applicants may file and serve a notice of appeal from the decision of Lander J given on 14 July 2004. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.