Case: SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 ; (2002) 126 FCR 552
Outcome: cited
In Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 at [6] I deprecated the artificiality of a statement such as that purportedly made by SZJXW in this matter. I endorse the observation subsequently made by Madgwick J in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 ; (2002) 126 FCR 552 at [9] . His Honour there said: ...there appears to be a need for legislative attention to the difficult and sensitive problem of dealing fairly and practically with the position, at various points primary decision, the Refugee Review Tribunal review, and judicial review of a child present in Australia who may be in need of asylum for reasons recognised by the relevant Convention. 7 Counsel for the Minister on this appeal was not able to advise me of any steps taken to address the problems identified in SBAH. It is presumably for this reason that officers of the Department of Immigration and Multicultural and Indigenous Affairs engaged in correspondence with SZJXW, addressed to her care of her parents, and officers of the Refugee Review Tribunal engaged in correspondence with her directly, including extending to her an invitation to attend a hearing. It would, I respectfully suggest, be in everyone's interest if provision could be made for a more sensible way of dealing with a claim for protection advanced on behalf of an infant. 8 Order 43 rule 1(1) of the Federal Court Rules provides that an infant may sue by his or her next friend. Order 43 rule 5(2) provides that a tutor (which term is defined by O 1 r 4 to include a next friend) must act by a solicitor. The tutor must not have an interest in the proceeding adverse to the infant (O 43 r 4(3)). This requirement might ordinarily be expected, in any case on which the Minister is the guardian of the infant pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth), to disqualify the Minister from assuming the role of next friend. I do not thereby imply that the Minister is the guardian of SZJXW. No submissions were advanced to the Court on that question. 9 In SBAH the Full Court, after considering the provisions of O 43 of the Federal Court Rules , took the view that an appeal instituted on behalf of an infant by her mother, who had not complied with the requirements of O 43 r 4, was not a nullity but that the mother's want of authority meant that the outcome of the appeal would not bind the infant. 10 In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 Mansfield J referred to the judgment of the Full Court in SBAH and to other authorities concerning the situation of a child on whose behalf, and for whose benefit, an adult had commenced a proceeding. Having done so, his Honour dispensed with compliance with the "formal steps" by which such an appointment is ordinarily made and appointed the father of the child applicant in that case as her next friend. It would appear that the dispensation granted by his Honour extended to compliance with O 43 r 5(2).