Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BMA18

Federal Court of Australia|2024-10-23|Before: Burley J

The appeal be allowed.
The notice of contention be dismissed.
The orders of the Federal Circuit and Family Court of Australia made on 9 September 2021, be set aside.
The respondent's litigation representative, being the father BLU18, pay the appellant's costs of the proceedings in an amount as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs appeals from a decision whereby it was found that the minor children included in a family visa application are not bound by a decision concerning that application because, at the time of the decision, no litigation guardian had been appointed to represent them. 2 The respondents are the father and two children of a family of four Sri Lankan citizens: a husband and wife and their two minor children. They arrived in Australia by boat on 1 May 2013. On 29 March 2017, the family lodged a combined application for a Safe Haven Enterprise Visas as members of the same family unit. The husband and wife made partially separate claims for protection. The children relied on their parents' claims as family members. The visa applications were considered by a delegate of the Minister who refused them visas in a decision dated 23 August 2017. The family applied for a review of the decision by the Immigration Assessment Authority (IAA), which on 23 February 2018, determined that the decision of the delegate should be affirmed. 3 The family then appealed the decision of the IAA to the Federal Circuit Court of Australia (FCCA), as the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) was then known. On 27 June 2019, that appeal was dismissed; BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1767 (Judge Emmett) (FCCA decision). They then appealed to this Court, which dismissed the appeal; BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706 (Burley J) (earlier FCA judgment). I refer to these decisions collectively below as the earlier proceedings. 4 On 26 June 2020, about one month after the earlier FCA judgment was delivered and orders were made in the earlier proceedings, the minor children sought an extension of time to institute a second appeal in respect of the decision of the IAA. The Minister opposed the application on the basis that it was an abuse of process and that the minor children were estopped from revisiting the decision of the IAA in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589. The Minister also contended that the grounds of review were, in any event, not made out. The primary judge granted the extension of time, rejected the abuse of process and estoppel arguments and allowed the appeal; BMA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 37 (Judge Street). The Minister now appeals from that decision. 5 The grounds of appeal raise a number of bases upon which the Minister contends that the primary judge ought to have found that the decision in the earlier proceedings was binding on the minor children. In the alternative, the Minister contends that the primary judge erred in finding that the decision of the IAA was affected by jurisdictional error. 6 The respondents filed a notice of contention raising five grounds. At the hearing, three were abandoned. In the remaining two, they contend that the decision of the FCCA decision was vitiated for a number of reasons. For present purposes it is not necessary to address those contentions, or the Minister's alternative challenge to the decision of the primary judge, because I am firmly of the view that the proceedings are an abuse of process and that the primary judge erred in concluding otherwise. 7 The appeal must be allowed and the notice of contention dismissed.

THE DECISION OF THE PRIMARY JUDGE 8 The primary judge records that the present proceedings were commenced by two minors whose parents had advanced protection claims that were determined adversely to them by the delegate and the IAA. The judge notes that in the proceedings before him, unlike the earlier proceedings, the father had been appointed a litigation guardian pursuant to the then-applicable rules, being the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) r 11.08. 9 The primary judge notes that there were two issues before the court. The first being the Minister's contention that the minor children were prevented from bringing the proceedings because to do so would give rise to an estoppel or an abuse of process. The second being whether, if there is no such limitation, the IAA had exceeded its statutory power in the exercise of its review. 10 In relation to the first issue, the primary judge found that the making of a litigation guardianship order under FCC Rules r 11.08 is a matter of substance not procedure, it being the formalisation by reason of which a child is able to be a litigant before the court (BMA18 at [10]). The primary judge said: 11. The naming of the children in the proceedings without a litigation guardian order does not make them a party to the proceedings. It is not until there has been an order under div 11.2 of the Rules, appointing a litigation guardian, that the children are properly joined as parties to the proceedings. It is not a procedural requirement but an essential and fundamental step to ensure a child is properly joined as a party. This essential step might be taken at any time up to the final determination of the matter. If however no such step has been taken before the final determination of the matter then the child has never been properly joined and is not a party to the proceedings. 11 The judge found that the absence of a guardianship order in the earlier proceedings meant that the children were never properly before the Court as parties (BMA18 at [15]). As a result, it could not be an abuse of process to bring the proceedings again in their interest (BMA18 at [16]). He also rejected the contention that relief the subject of s 75(v) of the Constitution could be the subject of any estoppel, whether it be Anshun estoppel or otherwise, because the children were not parties as they were not the subject of guardianship orders (BMA18 at [17]). He found that they were not parties to the proceedings that were finally quelled by Court order for the same reason (BMA18 at [18]). 12 In relation to the second issue, the primary judge found that the IAA failed to take into account an audio recording of the mother's (who is no longer a respondent in the proceedings) enhanced screening process, containing allegations that the mother of the minor children was sexually assaulted, finding: 44. On the evidence before the Court and given the focus by the Authority on the written arrival interview in determining the credibility of the mother of the applicants in respect of the sexual assault, the Court is satisfied that the Authority did not take into account the audio recording. That is because there is no reference to the answer given by the mother of the applicants in respect of the question as to whether she suffered harm, no reference to maternal grandmother being in the family home, and no reference as to what was meant by the father applicant in relation to the Karuna Group taking his wife. 45. The observations made in the audio recording, to which the Court has referred, were capable of supporting the credibility of the claims advanced by the mother of the applicants in respect of the sexual assault. Accordingly, the failure to take the same into account is one that the Court is satisfied is material and could have given rise to a different outcome in respect of the review application. 46. Accordingly, the Court is satisfied that the Authority failed to have a genuine intellectual engagement with the enhanced screening process recording. The Court is satisfied that the failure to do so was material and could have given rise to a different outcome in the determination of the review application. In those circumstances, the Court is satisfied that the jurisdictional error alleged in Ground 2 by Mr Taylor is made out. 13 The primary judge issued a writ of certiorari, quashed the decision of the IAA insofar as it related to the minor children and issued a writ of mandamus, referring the matter to the IAA for determination in accordance with the law.

3.1 The submissions 14 The Minister contends that the primary judge erred in failing to find that the proceedings before him were an abuse of process, or the subject of an estoppel. Six propositions were advanced under ground 1, namely: 1A. the primary judge erred in finding that a litigation guardianship order had to be made for the minor children; 1B. the primary judge should have found that in the absence of a conflict of interest, the lack of appointment of a litigation guardian does not render the order of the Court to be not binding on the minor children; 1C. the primary judge erred in failing to find that the judicial review proceedings in the court below constituted an abuse of process; 1D. the primary judge erred in concluding that even if concluding that there had been an abuse of process that he would have declined to dismiss the proceedings on those grounds; 1E. the primary judge erred in concluding that relief the subject of 75(v) of the Constitution cannot be the subject of any estoppel; and 1F. the primary judge erred by failing to find that the commencement of the present judicial review application was prevented by an estoppel. 15 Alternatively, he contends (in ground 2) that the primary judge erred in finding jurisdictional error in the decision of the IAA. 16 In relation to the first issue, the Minister contends that the primary judge mischaracterised the nature and effect of an order appointing a litigation guardian for a minor pursuant to FCC Rules r 11.08 and so erred in concluding that the non-appointment of a litigation guardian in the earlier proceedings meant that the present respondents were not bound by the orders made in the earlier proceedings, citing BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 1; 296 FCR 115 (Allsop CJ, Burley, O'Callaghan JJ). 17 In addition, the Minister submits that while at common law an infant generally cannot take action except by a next friend or tutor, where a jurisdiction is statutory, the statue may expressly or by implication displace the common law rule, citing Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 83; Haines v Leves (1987) 8 NSWLR 442 at 449-451. There is no requirement in the Migration Act 1958 (Cth) that non-citizen children who seek judicial review of a migration decision must only do so through a litigation guardian. 18 Accordingly, the Minister submits that the primary judge was in error to characterise the making of a litigation guardianship order under FCC Rules as a "matter of substance", if by that the primary judge meant that the absence of such an order necessarily affected whether a minor litigant in proceedings was bound by orders made in the earlier proceedings. In the present case, the minors were accompanied in Australia by their parents, who were the primary visa applicants upon whom their visa applications depended. The parents instituted the judicial review proceedings in the FCCA in 2018 and were themselves parties to the earlier proceedings. They were represented. There was no ostensible conflict of interest between the minors and their parents in the earlier proceedings. This distinguishes it from the position in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426; 126 FCR 552 at [31] - [33]. 19 If this proposition is accepted, the Minister submits that it is a short step to conclude that the primary judge erred in finding that the proceedings before him did not amount to an abuse of process, because they constitute a re-litigation of the claims assessed and rejected by the IAA, challenges to which were the subject of judicial review and dismissed at first instance and on appeal, citing Garrett v Make Wine Pty Ltd [2014] FCA 1258; 323 ALR 652 (Mortimer J) at [151]. Alternatively, the Minister submits that the primary judge was wrong to conclude that the proceedings could not be prevented by an Anshun estoppel. 20 The respondents submit that, contrary to the position advanced by the Minister, that the minor children had, through their parents, raised direct claims for protection in their own right. They submit that the delegate assessed the children only as derivative applicants, but the IAA assessed each as raising their own claims for protection directly. 21 The respondents submit that the obligation of the Court was to ensure that their rights were considered and it was, they submit, a primary requisite for the exercise by the Court of its jurisdiction. They contend that BKW17 at [35] did not apply to their position because the children had raised direct claims for protection, not merely as family members. They further contend that absence of a conflict of interest is not determinative of whether the children's legal interests were taken into consideration. They submit that in circumstances where the children were not properly joined to the earlier proceedings there cannot be an abuse of process in prosecuting the current proceedings and no Anshun estoppel can apply.

3.2 Consideration 22 In the earlier proceedings, claims were advanced on behalf of the husband to the effect that he fears harm if required to return to Sri Lanka because of imputed links to the Liberation Tigers of Tamil Eelam (LTTE) and problems with the Karuna group (the earlier FCA judgment at [3]). Claims were advanced on behalf of the mother to the effect that she feared harm because of her family's profile as LTTE supporters, her husband's problems with the Karuna group and because she had been the victim of a sexual assault by members of the Karuna group (the earlier FCA judgment at [4]). The only ground advanced on appeal to this Court was that the primary judge erred in failing to find error by the IAA in not interviewing the mother in relation to her claims of sexual assault (the earlier FCA judgment at [9]). That ground had not been advanced before the FCCA and so leave to rely upon it was necessary (the earlier FCA judgment at [22]). In considering the merits of the claim, the earlier FCA judgment noted the two arguments put forward, namely that the IAA failed to consider whether to invite the wife to give new information in relation to the sexual assault under s 473DC of the Migration Act, or alternatively, that the IAA failed to exercise the power under s 473DC of the Migration Act to invite the mother and father to give new information (at [24]). After reviewing the evidence before the IAA, the earlier FCA judgment explains why that limited ground had insufficient prospects of success to permit leave to be granted (at [53]). 23 The claims made by the respondents in the proceedings before the primary judge replicated matters that either were, or could have been, agitated in the earlier proceedings. All concerned the manner in which the IAA addressed their parents' claims. I do not accept the submission advanced by the respondents that they had raised "direct claims for protection in their own right", if by that submission they mean that the minor children had independent or different claims to those of their parents. The children did not advance any separate claim in writing or orally, or give evidence, or say anything to any decision makers suggesting a separate claim. Although the parents did give evidence that they feared that their children may be kidnapped, the basis for that fear was entirely dependent on acceptance of the parent's claim that they were being targeted. The children made no claim to the effect that even if the delegate or the authority found that the Karuna group was not targeting their parents, they nonetheless were at risk. In short, the children's applications were dependent as a practical matter on the acceptance of their parents' protection claims. As a consequence, all of the issues before the delegate, the IAA, the FCCA and this court in the earlier proceedings concerned alleged error pertaining to the parents' claims because no independent claims were advanced. 24 The respondents contended before the primary judge that they were not bound by the outcome of the decision in the earlier proceedings because no litigation representative was appointed prior to the appeal in those proceedings. Accordingly, they say, they are not bound by the result. 25 In my view, the primary judge erred in concluding that the children were not parties to the earlier proceedings and were not bound by the decision in those proceedings. 26 The decision of the Full court in BKW17 provides a clear explanation as to why. The Court there was concerned with two proceedings where two different sets of minor applicants sought leave to appeal orders made by the FCCA. It was argued that the minor children in each family were not bound by the outcome of earlier Federal Court appeals to which they had been parties because no litigation representative have been appointed to protect their interests. The Full Court accepted that there were two simple answers to the claims of the minor children. The first was that there had in fact been a legal representative appointed (BKW17 at [9]-[28]). Accordingly, the proposed appeals were found to be incompetent and an abuse of process as an attempted re-litigation of past and finalised proceedings. The extensions of time were refused (BKW17 at [33]). That finding is not applicable to the present case. 27 The Full Court then addressed the second simple answer which applied to one of the appeals before it. In relation to that appeal, as the Full Court notes at [5], the principal claim was made by the father who claimed to fear harm because of suspected involvement with the LTTE. No other claims were made by the mother and minor children. Their claims for protection were entirely dependent on the success of the father's claims. 28 In respect of that appeal, the Full Court said: 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). 29 In the passage in BTM15 cited by the Full Court, Griffiths J said: 3. At the commencement of the hearing, the issue was raised as to whether litigation guardians should be appointed. Having regard to the terms of r 9.61 of the Federal Court of Australia Rules 2011 (Cth) and the fact that the first and second applicants themselves are under no evident legal incapacity and are the parents of the children and the children are secondary applicants, the rule is considered not to apply so as to require the appointment of separate litigation guardians. 30 The primary judge in the present proceedings concluded that FCC Rules r 11.08 makes clear that there is a need to have a litigation guardian in respect of any child, that the making of a litigation guardianship order is a matter of substance, the absence of which meaning the child is not, in effect, a party to the proceedings (at [9]-[11]). 31 Rule 11.08 of the now repealed FCC Rules provides: (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. 32 The finding that a child is not a party to a proceeding unless a guardianship order is made is, in my respectful view, incorrect. The position in the present case is on all fours with the position summarised in BKW17 insofar as it concerns a child whose interests and claim for protection are coincident with those of the parents who advances the primary claim. 33 This position is reinforced by consideration of the scheme of the Migration Act as it applies to the present facts because there is no requirement in the Migration Act that non-citizen children who seek judicial review of a migration decision must do so only through a litigation guardian. In this regard the following provisions of the Migration Act may be noted: section 476(1) relevantly confers jurisdiction on the FCFCOA in respect of migration decisions; section 477 enables that jurisdiction to be enlivened by the making of an application to the FCFCOA; section 478(aa), the section applicable at the date of the earlier proceedings and the primary decision, provides that if the migration decision concerned is made on review under Part 7AA, an application may be made by the referred applicant in the review by the IAA; section 479(aa), the section applicable at the date of the earlier proceedings and the primary decision, provides that the parties to a review of a migration decision of this sort will be the Minister and the referred applicant; section 486B addresses multiple parties in migration litigation and by (1) applies to all proceedings in the High Court, Federal Court and FCFCOA. It provides in subsections 4(a)-(b) that representative or class actions and joinder of plaintiffs, or applications, or the addition of parties are not permitted in any migration proceeding. Relevantly, in s 486B(4)(c) it provides that it is not permitted that "a person in any other way … being a party to the proceeding jointly with, or on behalf of, for the benefit of, or representing, one or more other persons, however this is described" (emphasis added); section 486B(7) provides an exception to the general rules, including s 486B(4)(c), which is as follows (emphasis added): (7) This section does not prevent the following persons from being involved in a migration proceeding: (a) the applicants in the proceeding and any persons they represent, if: (i) the regulations set out a definition of family for the purposes of this paragraph; and (ii) all of those applicants and other persons are members of the same family as so defined; (b) a person who becomes a party to the proceeding in performing the person's statutory functions; (c) the Attorney-General of the Commonwealth or of a State or Territory; (d) any other person prescribed in the regulations. division 5.8, regulation 5.43 of the Migration Regulations 1994 (Cth) defines "family" for the purposes of s 486B(7)(a) of the Migration Act to mean the spouse or de facto partner of the applicant and the dependent children of the applicant. division 5.8, regulation 5.44 of the Migration Regulations provides that for s 486B(7)(d) any other person is: … the legal personal representative of a person who has a serious physical or mental incapacity and who is an applicant in a migration proceeding, or a member of the family of the applicant is prescribed. 34 The Minister submits that by reason of the definition of "family" it is apparent that the children in the present case can be part of the same proceedings. He also submits that s 486B(7), read with Division 5.8 of the Migration Regulations, permits family members to represent both themselves and represent other members of the same family in the same proceedings. In this regard, he draws upon the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 2) 2000 (Cth) (in this memorandum references to subparagraph 486B(4) are references to the now subparagraph 486B(7)) which says: • new paragraph 486B(4)(a) ensures that members of the same family as defined in the regulations, are not prevented from being applicants in an application for judicial review in the High Court or the Federal Court. This allows family members both themselves and/or as representatives of other members of the same family to be involved in the multiple party proceedings; and • new paragraph 486(4)(d) allows, as necessary, for the prescription in the regulations of other persons who are not subject to the bar in new subsection 486B(1). For example, it is intended that the regulations will provide that the "next friend" of a minor or a mentally disabled person who is not a family member (and so not covered by new paragraph 486B(4)(a)) can be involved in multiple party proceedings in the High Court or Federal Court if necessary. 35 The Minister submits that seen as a whole, the legislature has constructed an elaborate regime to control who can be parties in litigation. It is envisaged that parents may make a joint application on their own behalf and on behalf of their children and that this is contemplated and desired under the legislation. He submits that this provides an additional reason why a formal appointment of the parents as litigation guardians is not necessary. In the event that there is a reason why the parents will not have the interests of the child at heart, or have an interest adverse to the interest of the child, the court would still be able to take steps to ensure that other measures are taken. But the regime is indicative that the Parliament intends that an application like that before the FCCA and the Federal Court in the earlier proceedings was allowed and contemplated. 36 I accept that submission. More particularly, I accept that there is no requirement in the Migration Act that non-citizen children who seek judicial review of a migration decision must do so only through a litigation guardian. In this regard, the common law rule that an infant generally cannot take action except by a next friend or tutor may be considered to have been displaced by the language and scheme of the Migration Act; Dey at 83; Haines at 449-451. 37 These matters lead to the result that the primary judge erred in determining that the respondents were not parties to the earlier proceedings and were not bound by the result in those proceedings. They were so bound, with the consequence that the primary judge erred at [20] in determining that the respondents were not properly joined. No conflict of interest has been identified. 38 Having regard to these matters, in my view the current proceedings constitute a re-litigation of the claims assessed and rejected by the IAA, which were subsequently the subject of judicial review and dismissed both in the FCCA and in this Court on appeal in the earlier proceedings. Such circumstances have been recognised to be capable of amounting to an abuse of process, which the Court has power prevent, both under Federal Court Rules 2011 (Cth) r 26.01(1)(d), and also under its implied incidental power to control its own process and to prevent misuse of it; Sea Culture International Pty Ltd v Scoles [1991] FCA 677; 32 FCR 275 (French J) at 279. As stated by Justice French in Sea Culture at 279: An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal, may constitute an abuse of process, even if not attracting the doctrines of res judicata or issue estoppel. See also Garrett at [147]-[151]; Kanakaridis v Westpac Banking Corporation [2015] FCA 1146 (Beach J) at [67]. 39 Underlying that power are two policy considerations; "a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes, and the necessity to maintain confidence in and respect for the authority of the courts"; Garrett at [150]. The primary judge erred in failing to conclude that this was so in the present case.

DISPOSITION 40 For the reasons above I have concluded that the Minister must succeed in his appeal on the basis of matters raised within ground 1 of the appeal. It is not necessary to consider ground 2 of the amended notice of appeal or the respondent's notice of contention. 41 Accordingly, the appeal must be allowed and the orders of the FCFCOA made on 9 September 2021 set aside. The costs of the appeal, and of the proceedings below, must be paid by the respondent's litigation representative, being the father BLU18 in an amount as agreed or taxed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

SCHEDULE OF PARTIES NSD 1047 of 2021 Respondents Fourth Respondent: IMMIGRATION ASSESSMENT AUTHORITY

Migration Act 1958(Cth)ss 473DC, 476(1), 477, 478(aa), 497(aa), 486B(1), 486B(4), 486B(4)(c), 486B(7), Part

Federal Court Rules 2011(Cth)r 26.01(1)(d), r 26.01(1)(d), and

Migration Regulations 1994(Cth)div 5.8, regs

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (5)

Cases Cited (10)