SBAH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

2 The disposition of the proceedings which Emmett and Conti JJ propose would appear appropriate where, in such a case, there has been culpable non-prosecution of the child's claims by an adult who has been suffered by the opposing party and the Court to have the conduct of the child's case, provided that no irremediable loss of what has been claimed for the child ensues, that is to say: provided that, upon attaining his or her majority, the child might be able to re-assert the right. It is, however, less clear to me that that is an appropriate course where, as here, what is at stake is the child's possible status as a refugee. 3 I have examined the decision of the Refugee Review Tribunal ("the Tribunal") of which, purportedly on behalf of the child concerned, judicial review by Marshall J was sought. The child's mother contradicted both herself and what the child's father had, on other occasions, said. The Tribunal therefore rejected her credit and the claim that the child in question was the second child of both of his parents. Such rejection is likely to be legally unimpeachable under the most beneficent regime of judicial review of such decisions that might, realistically speaking, be constitutionally mandated, legislatively prescribed or judicially fashioned. But such a view of the matter shows that, at worst, the mother was an irresponsible liar or that, at best, she was confused and unable to articulate a coherent and consistent story. In either case, and across the broad intermediate range of possibilities, she is revealed to have been not an appropriate person to have had the carriage of the child's case. 4 It is another matter entirely to conclude that no arguable case might be made that the child has a right to refugee status or that no rational or more powerful legal criticism might have been made, in the child's interests as distinct from those of his mother, of the way in which the Tribunal disposed of the case. There was no rejection by the Tribunal of the apparent position that the child was not his father's only child. There has apparently been persecution of "black children" in China sufficient to warrant according refugee status to at least some of them. Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 shows that. There are, arguably, serious questions as to how the Tribunal should proceed in the case of a child when it is apparent that the adult making the claim purportedly on the child's behalf is unsuitable for the task. The fact that these questions were not agitated before the primary judge would not, especially in the case of a child, necessarily be fatal to their success: as a curial objective, getting things right might be thought to rival throughput and tidying up loose ends: Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. Finally, various questions as to the constitutionality and proper meaning of s 474 of the Migration Act 1958 (Cth) ("the Act") are pending in the High Court. In any case, the position of an actually or constructively unrepresented child may call for some modified interpretation, no less radical than that which the Hickman doctrine is said to require, of s 474. Thus, the law on that controversial subject may fairly be said to be still in a state of development. 5 In these circumstances, it is not clear that the boy's case is quite hopeless. 6 However, if we dispose of his case in the way proposed by Emmett and Conti JJ, it seems at least highly possible that, despite the contemplated attempted notification of the child's mother, the dismissal of the appeal will not come to the attention of a responsible and competent adult having the child's interests at heart. Further, in those circumstances, his right to be in Australia would appear to be at an end unless and until someone on his behalf applies to set aside the proposed dismissal of the appeal - one assumes that, in accordance with what I understand to be usual practice in a case such as this, a "bridging visa" was issued or continued in respect of the child and/or his mother on the faith of the currency of the application to the Tribunal and the proceedings in this Court. A dismissal of the appeal would terminate those proceedings, notwithstanding that there might be a means of ending that termination. The child would presumably then be liable to detention: s 189 of the Act, that is to say, eschewing euphemism, to imprisonment. The child would also in such a case be liable to "removal" or, again eschewing euphemism, to deportation. At the very least, as Emmett and Conti JJ foresee (rightly as it seems to me), the effect of the orders proposed will be to deprive the child of any effective right of appeal unless someone on his behalf manages to persuade the Court to reactivate this appeal: he will be out of time to lodge a fresh appeal. 7 It is, I acknowledge, difficult to devise an adequate unravelling of the procedural knots. However if, as was suggested to us by counsel for the respondent, the chances of the respondent's Departmental officers finding the child (and presumably his mother) are not high, as a practical matter there will probably be no actual prejudice to the respondent's powers and duties of law enforcement merely from the sufferance of a continuing existence, in the child's interests, of the appeal proceedings. One possibility might be for the respondent Minister to undertake to the Court that he would vary the child's (presumably still existing) bridging visa to keep it in existence until, say, 60 days after the child is found by the authorities and the Court's reasons are shown to have been explained to a responsible adult acting in the child's interests, so as to enable an orderly application to the Court to revive this appeal. However, no such undertaking has been offered and there may be unexplored legal obstacles to such a course. Another possibility might be for the respondent to invoke the apparent power of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth) and s 79 and s 80 of the Judiciary Act 1903 (Cth) to appoint a suitable person, perhaps the State Minister responsible for children's welfare, to be a guardian ad litem. No such application to the Court has, however, been made. Nor has the respondent evinced any support for the Court's acting of its own motion. Yet another possibility is that the respondent might offer to pay the costs of an amicus curiae to consider the matter fully in the child's interest, and to invite the Court to ask the local Bar Association to arrange an appearance by such a person: it may be that, notwithstanding the absence of the child's mother, counsel could adequately present all the arguments he or she considers could be put on the appeal. No such offer has been put before the Court. (By reason of the mother's apparent unsuitability to be an instructor on the child's behalf, the Order 80 procedure contemplated in the Federal Court Rules appears inappropriate, c.f. Soudakov v Minister for Immigration & Multicultural Affairs [2001] FCA 993.) In the face of the present difficulties we should, in my opinion, opt for the safest and least unsatisfactory of the available alternatives. 8 In the circumstances, I would therefore propose that: (i) The appeal be stood over generally with liberty to restore 60 days after the appellant child's mother has been personally notified of the orders of the Court and has had the reasons of the members of the Court explained to her by an independent legal advisor practising in the field of immigration law; and (ii) The respondent have liberty to apply ex parte for variation of these orders to enable disposition of the appeal in some other way which will not practically disadvantage the purportedly appellant child.

REASONS FOR JUDGMENT EMMETT & CONTI JJ 10 The person named as appellant in this proceeding ("the Appellant") is two years of age. On 3 August 2000, an application for a protection visa under the Migration Act 1958 (Cth) ("the Act") was lodged on his behalf with the Department for Immigration and Multicultural and Indigenous Affairs ("the Department"). On 24 January 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant a protection visa. On 8 February 2001, an application was made on behalf of the Appellant to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision. On 23 October 2001, the Tribunal affirmed the decision not to grant a protection visa. 11 On 7 December 2001, an application in the name of the Appellant was filed in the South Australia District Registry of the Court, seeking relief under s 39B of the Judiciary Act 1903 (Cth). The application was filed by Aujard Lawyers, solicitors, purporting to act on behalf of the Appellant. The application sought, inter alia, orders that writs of certiorari, prohibition and mandamus be directed to the Tribunal. The application was accompanied by an affidavit sworn by a solicitor purporting to act on behalf of the Appellant. The affidavit stated that the solicitor acted for the Appellant and that the Appellant had standing to commence the proceeding pursuant to s 479(a) of the Act. 12 At the hearing of the application before a judge of the Court on 5 April 2002, the appellant was represented by junior counsel who was instructed by Aujard Lawyers. The Minister was represented by senior and junior counsel also instructed by solicitors. On that day, the primary judge dismissed the application with costs. 13 On 26 April 2002, a notice of appeal was purportedly filed on behalf of the Appellant by his mother. The grounds stated in the notice of appeal were as follows: "2. That his Honour failed to take account of the fact that the Tribunal had made a decision on the basis of China's one child policy where there was no indication that the Tribunal had any knowledge of that policy. 3. The appellant reserves the right to file further grounds." 14 The notice of appeal appointed 12 June 2002 before the Registrar for the purpose of settling the appeal papers. On 6 June 2002, the Minister's solicitors wrote to the Appellant care of his mother at the address shown in the notice of appeal as the Appellant's address for service ("the Notified Address"). The letter enclosed a draft index of the appeal papers. On 12 June 2002, at the appointed time, there was no appearance on behalf of the Appellant. The appeal was stood over to a date to be notified and was subsequently relisted for settling of the appeal papers on 6 August 2002. A letter was sent to the Appellant's mother at the Notified Address notifying her of that appointment. 15 On 13 June 2002, the Minister's solicitors wrote to the Appellant care of his mother at the Notified Address confirming that the matter had been relisted for the settling of the appeal papers on 6 August 2002 at 9.30 am. On 25 June 2002, a man who identified himself as "William" and who claimed to be "a friend of the applicant", telephoned the Minister's solicitors and said that the Appellant's mother had received the letter of 13 June 2002. The solicitors confirmed to William that the matter was listed for settling of the appeal papers on 6 August 2002 and suggested that someone should attend on the Appellant's behalf. It was also suggested to William that the Appellant's mother should file a notice of motion and affidavit for appointment as next friend of the Appellant. 16 On 9 July 2002, the Minister's solicitors wrote to the Appellant care of his mother at the Notified Address enclosing a draft status report in relation to the appeal. The letter requested that the form be completed and returned to the Minister's solicitors by 19 July 2002. On 18 July 2002, William telephoned the Minister's solicitors again and said that he had been asked by the Appellant's mother to telephone and say that she would be attending the call over that had been fixed for 31 July 2002. 17 At the call over on 31 July 2002 before Sackville J, there was no appearance for the Appellant. Sackville J directed that the matter be listed for hearing in the November Full Court sittings. His Honour gave the Minister leave to file a notice of motion for dismissal of the appeal to be heard at the same time as the appeal. 18 On 31 July 2002, the Minister wrote to the Appellant care of his mother at the Notified Address referring to the call over on that day and to the fact that there was no appearance for the Appellant. In the letter, the Minister's solicitors said that: · the matter had been set down for hearing in the November sittings; · the Minister had leave to have a notice of motion for dismissal heard at the same time; · the parties were to file and serve written submissions prior to the hearing. The letter stated that the matter would be before the Court for settling of appeal papers on 6 August 2002 and ended as follows: "If there is no appearance on behalf of the appellant on that occasion we will seek instructions from our client to file a notice of motion with the Court to have the matter dismissed with costs." 19 There was no appearance on behalf of the Appellant before the Registrar at the appointment for the settling of the appeal papers on 6 August 2002. Registrar Grant made orders for the preparation and filing of appeal books. The Registrar also directed the Minister to notify the Appellant of the need to file a notice of motion seeking the appointment of a tutor. 20 On 8 August 2002 the Minister's solicitors again wrote to the Appellant care of his mother at the Notified Address reporting the orders made by Registrar Grant on 6 August 2002. The letter ended as follows: "As the appellant is only 2 years old, a next friend will need to be appointed to represent his interests. If the appellant wishes to proceed with the appeal, a notice of motion will need to be filed with the Court seeking the appointment of a next friend. You should do this as soon as possible to protect the appellant's interests. We enclose a draft notice of motion for your assistance." 21 On 19 September 2002, the Minister's solicitors wrote again to the Appellant care of his mother at the Notified Address stating that, since there had been no response in relation to filing a notice of motion to appoint a next friend, the Minister proposed to proceed with a notice of motion to have the appeal dismissed for want of prosecution. 22 On 15 October 2002, the Minister filed a notice of motion seeking orders that the appeal be dismissed pursuant to O 52 r 38 for want of prosecution. Attempts were made on 16 October 2002 to serve the notice of motion at the Notified Address. The attempts were unsuccessful since it appears that the Appellant and his mother are no longer known at the Notified Address. A search of the database of the Department was conducted to ascertain a current residential address for the Appellant and his mother. That search revealed an address and on 29 October 2002, the Minister's solicitors wrote to the Appellant care of his mother at that address enclosing a copy of the notice of motion and an affidavit in support. 23 On 1 November 2002, the Minister's solicitors spoke to William who said that he had not had contact from the Appellant's mother for at least two months and that he did not know where she was living. William was informed that the hearing of the appeal was fixed for 7 November 2002 and that the Minister was seeking to have the appeal dismissed since no steps have been taken to prepare the case. 24 When the appeal was called on for hearing on 7 November 2002, there was no appearance for the Appellant. Counsel for the Minister therefore moved ore tenus for dismissal under O 52 r 38A, as well as relying on the notice of motion. In the absence of any appearance on behalf of the Appellant, the Court has had no assistance in determining whether the appeal would have any prospects of success. We have nothing more than the reasons of the primary judge for dismissing the application. 25 It appears that the appellant's parents are citizens of the People's Republic of China. The reasons of the primary judge indicate that the Appellant was born in Australia some eight days after his father was removed from Australia after an unsuccessful attempt to obtain a protection visa. His mother was not removed from Australia at that time because she had just given birth to the Appellant and was recuperating. The Appellant's mother had also made an unsuccessful application for a protection visa. She had remained in Australia pending the outcome of the proceeding. 26 The Appellant's mother claimed before the Tribunal that the Appellant would face persecution if sent to China because he was the second son of her marriage to his father and consequently would be considered to be a "black child" by the Chinese authorities. She claimed that her first child was born in China in June 1994 and was left there in the care of her parents. However, the Tribunal did not accept that the Appellant is the second child of his parents. Accordingly, it did not accept that the appellant was born in contravention of China's one child policy. The Tribunal concluded that the appellant does not have a well-founded fear of persecution as set out the United Nations Convention Relating to the status of Refugees if he travels to China with his mother. 27 The primary judge rejected submissions made on behalf of the Appellant that the Tribunal had committed a jurisdictional error by not making a finding abut the Appellant being a "black child" by reference to his father's children by his first wife. In any event, the decision of the Tribunal is clearly a privative clause decision within the meaning of s 474 of the Act. Before the primary judge, it was accepted on behalf of the Appellant that the decision of the Tribunal was a bona fide attempt to exercise its power and that the decision related to subject matter of the Act. Accordingly, it was beyond the power of the Court to entertain a proceeding seeking to impugn the Tribunal's decision. 28 In the circumstances, no error on the part of the primary judge is apparent. In the absence of any meaningful ground of appeal, the appeal has no prospect of success. But for the irregularity of the appeal having been filed on behalf of the Appellant by his mother without any formal appointment of her as tutor, there would be no question but that the appropriate course would be to accede to the Minister's application for the appeal to be dismissed. 29 If a proceeding is instituted in the name of an adult person without his or her authority, he or she could not be prejudiced by the outcome of the proceeding. 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. 30 In case of infants, agency or representation must be established by some legal means. The law supplies the means of providing representation of infants by the appointment of a next friend. Such authority is provided by resort to the relevant procedures of a court concerning the appointment of a next friend to commence or prosecute a proceeding on behalf of the infant. 31 Order 43 rule 1(1) of the Federal Court Rules ("the Rules) provides that an infant or minor may sue by his next friend. Under Order 1 Rule 4, a "tutor" includes a next friend and "a person under disability" includes an infant or minor. Under O 43 r 2(1) of the Rules 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. Under O 43 r 5(1) where a person under disability is a party to any proceeding, anything that would, if he were not a person under disability, be required or authorised to be done by him shall or may be done by his tutor. However, a tutor must act by a solicitor. 32 Under O 43 r 4(1) of the Rules an order appointing a tutor is not necessary. However, it may well be in the interests of a respondent to a proceeding to ensure that a tutor is appointed in order to ensure that the proceeding will finally dispose of the issues raised by it. Otherwise, the infant applicant would not be precluded from litigating the same questions again in a new proceeding. . 33 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. 34 Order 52 rule 38(1)(a) provides that where an appellant has not done any act required to be done by or under the Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may order the appeal be dismissed for want of prosecution. The Appellant has failed to file appeal books as required by the Rules and the directions given by the Registrar. There has been no appearance for the Appellant at any of the appointments for settling the appeal index. Further, O 52 r 38A(1)(c) of the Rules provides that if a party is absent when an appeal is called on for hearing the Court may, if the absent party is an appellant, dismiss the appeal. There was no appearance for the Appellant when the appeal was called on for hearing. Thus, apart from the question of infancy, the Minister has established a case for dismissal of the appeal. 35 If the appeal is dismissed pursuant to O 52 r 38 or 38A(1)(c), the Appellant, since he is not proceeding by a tutor, will not be prejudiced by the dismissal. It may be that the Appellant is not bound by the dismissal of the application by the primary judge although, assuming that there was a valid application to the Tribunal for review, any application for relief in relation to the decision of the Tribunal may now be out of time. That question, however, is not presently before the Full Court. Nor is the question whether or not the Appellant was prejudiced by the proceeding before the primary judge. 36 The appropriate course is to dismiss the appeal pursuant to O 52 r 38A(1)(c) and to direct the Minister to take steps to inform the Appellant's mother of the orders made by the Full Court, the terms of these reasons and the provisions of O 52 r 38A(2), which provides that if an order is made under r 38A(1)(c) to dismiss an appeal, the Court may, on motion by the party against whom the order is made, set aside or vary the order. The Minister should do so by written communication addressed to the Appellant's mother at all addresses known to the Minister after making all enquiries of all reasonable sources, including Aujard Lawyers, who acted for the Appellant before the primary judge. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett and Conti.

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