Jeom Sook Song v Minister for Immigration and Ethnic Affairs

[1997] FCA 358

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIAN DISTRICT REGISTRY	)     No. VG 170 of 1996
)
GENERAL DIVISION	)

BETWEEN:		JEOM SOOK SONG Applicant
AND:		THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent
CORAM:	EMMETT J
PLACE:	MELBOURNE
DATED:	8 APRIL 1997

EX TEMPORE REASONS FOR JUDGMENT

This is an application brought within the jurisdiction conferred by section 486 of the Migration Act 1958 (“the Act”) in respect of a decision of the Immigration Review Tribunal which it is common ground is a judicially reviewable decision within the meaning of section 475(1) of that Act. In the amended application the grounds specified are those contained in paragraphs (a), (e) and (g) of section 476(1). So far as paragraph (a) is concerned it is contended that there was a failure to comply with the requirements of section 353 of the Act in so far as that requires that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case.

An issue before the Tribunal was whether or not the applicant had become an illegal entrant on 15 March 1990 when her then current three month visitor visa expired. The contention of behalf of the applicant before me involved a finding that there had been lodged with the department certain documents prior to 15 March 1990 The argument in so far as it is based on paragraph (a) is that the Tribunal failed to alert the applicant of evidence which the Tribunal had sought out in breach of the requirement of section 353.

That contention appears to me to be quite untenable in the light of what seemed to have been an admission made on behalf of the applicant by letter of 23 October 1995. In that letter the agent of the applicant said, amongst other things, the following:

Before starting this submission we have advised our client back on 22 October 1993 of the problems associated with this case in respect of their illegal status and the problems within the law because of that illegal status..... 

and:

There is some question in our mind as to whether or not our client was an illegal entrant.  To further explore this, we need to go back to the extensions of our clients temporary entry permits which they applied for on 17 March 1990......

and the following:

When our clients applied for their temporary entry permits on the application form 2, the Department of Immigration erred in law in not giving our clients a Processing Entry Permit after the application was lodged on 17 March 1990.

The finding by the Tribunal complained of was in these terms:

On 5 March 1990 the applicant claims that she signed a letter and an application to extend her temporary entry permit. The Department's files contain such a letter signed by the applicant and dated 5 March 1990. Unfortunately, the letter and accompanying applications of the applicant and her children were not lodged with the department until 17 March 1990.

It is difficult to see how any complaint can be made about that finding in the light of admission to which I have just referred.

In so far as reliance is placed upon paragraph (e), the applicant complained about the finding made by the Tribunal that the applicant held no other entry permit or visa in the intervening period between the expiry date of her original entry permit and the 7 December 1992. She was therefore an illegal entrant from 15 March 1990. It is contended that that finding failed to consider the application of regulation 22A(a) to the applicant's situation, the application of regulation 131 and as to whether or not the department erred in not granting the applicant a processing visa pursuant to regulation 131 upon lodgment of her application dated 5 March 1990. In the course of argument, reliance upon regulation 22A(a) was abandoned quite properly.

Alternatively it was said that a letter of 5 March 1990 should have been construed by the department as an application for a processing entry permit in accordance with regulation 131. There is nothing in that letter to hint at its being treated in that way. The argument was that it would have been futile to make an application for a further entry permit, as was made under cover of that letter, unless at the same time an application for a processing entry permit was also made. That is not self-evident. It may be that the failure to apply for a processing entry permit was an oversight, or resulted from a lack of proper advice. Nevertheless, section 34 of the Act provided that, unless that section applied, the Minister was not required to consider an application at all and must not in any circumstances grant an entry permit. Under section 34(1) the section applies where, and only where, a person makes an application for an entry permit of a particular class in accordance with the regulations, and any fee payable in respect of the application is paid.

I have been informed that no fee was payable. Nevertheless I do not consider that the letter of 5 March 1990 could be construed as an application for an entry permit other than that which was the subject of the printed form enclosed with the letter. There is of course a question of whether or not that letter was received by the department before 15 March 1990. In any event the Tribunal's finding was that it was not. I shall come back to that matter shortly, since that is the question which is raised by the applicant in relation to ground (g) in section 476(1). In relation to the matter generally, and perhaps specifically in relation to the issues that are raised by paragraph (e), the Minister says that even if any of the grounds relied upon in the application were made out, it would be futile for this matter to be remitted to the Tribunal for further consideration because it would be doomed to failure.

The application under consideration by the Tribunal was an application to remain permanently in Australia which was lodged on 26 October 1993. The basis upon which the application was made, as recorded by the Tribunal, was that the applicant is an illegal entrant within Part 806 of schedule 2 to the regulations and is a person who satisfies the requirements of sub-clause (7) of that item. Sub-clause (7) provides that the applicant meets the requirements of that sub-clause if the applicant is a special need relative of another person who is usually resident in Australia, or is a settled Australian citizen or a settled Australian permanent resident.

In the application to remain permanently in Australia the applicant was required to give details of the Australian resident who needs the applicant's assistance. The applicant answered that requirement by referring to Kuy Sang Sho who is said, under the heading: “Relationship To You”, to be "sister-in-law". The Minister says that whatever might be the merits of any other arguments, a sister-in-law is not capable of being a special need relative of the applicant. Special need relative is defined in regulation 1.3 of the Migration Regulations as meaning a relative who is willing and able to provide substantial and continuing assistance in the circumstances there described. The question then is whether the present applicant is a relative of her sister-in-law Kuy Sang Sho.

Relative is defined as meaning, in relation to a person, a person within a degree of relationship referred to in paragraph (a) of that definition, namely, for present purposes, a “close relative”. The term close relative is defined in the same regulation as meaning, in relation to a person:

(a) The spouse of the person, or (b) a child, adopted child, parent, brother or sister of the person, or a step-child, adopted step-child, step-parent, step-brother or step-sister of the person.

A sister-in-law does not fall within any of those relationships.

I understand a sister-in-law to be the sister of the spouse of the person in question, or alternatively, the spouse of one's sibling. It is not clear what the relationship was, but there is no reason to doubt that Kuy Sang Sho was either the sister of the applicant's husband or the wife of the applicant's brother. Whichever it was, she is not a step-sister of the applicant. A step-sister I take to be the child of the spouse of one's parent. In other words, there is no blood relationship between step siblings any more than there is between sisters-in-law. Nevertheless, they are different degrees of relationship; while both depend upon a marriage, one depends upon the marriage of one's parent, the other depends upon one's own marriage or the marriage of one's sibling.

The definitions in regulation 1.3 are sufficiently specific to recognise a distinction between a step-sister on the one hand and a sister-in-law on the other. No degrees which can be described as in-laws appear in those definitions. For that reason, if for no other reason, this application would be doomed to failure.

There is, however, the ground of paragraph (g) in section 476(1) which I have not otherwise dealt with. If I am correct in the conclusion which I have reached in relation to close relative, that is an end of the matter. However, it is desirable I think that I deal with the question of ground (g). Paragraph (g) is that:

There was no evidence or other material to justify the making of the relevant decision.

Section 476(4) provides that:

The ground .... is not to be taken to have been made out unless(a) the person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material ...... from which the person could reasonably be satisfied that the matter was established, or (b) the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.

The first could not be satisfied in this case for the reasons which I have already set out.  That is to say, the written submission on behalf of the applicant which was before the Tribunal indicated that the material in question was not received until 17 March 1990. Reliance was placed on the second limb, namely, that the person who made the decision based the decision on the existence of a particular fact and that fact did not exist. It was said that the Tribunal based its decision on the fact that the documents were received on 17 March 1990.

Counsel for the applicant sought leave to adduce further evidence to show that that fact did not exist, namely, evidence from which it might have been possible to draw a conclusion that documents were lodged with the department prior to 15 March 1990. I consider that the contention is misconceived. The conclusion was not that documents were received on 17 March 1990 but that no documents were received before 15 March 1990. There was clearly evidence as to that matter. The Tribunal was required by law to reach the decision which it reached having regard to its reasoning if it were established that the applicant was an unlawful entrant as at 15 March 1990. As I have said there was clearly evidence from which that conclusion could be reached.

I was referred to decision of the Full Court in Curragh Queensland Mining Limited v. Daniel (1992) 34 FCR 212 in which consideration was given to the operation of section 53B in the context of section 5(1)(h) of the Administrative Decisions (Judicial Review) Act. The Chief Justice said in that case at (page 224) that on the undeniable assumption that the ground provided for in section 5(1)(h), which corresponds with paragraph (g), as elucidated by section 5(3)(b), which corresponds with subsection (4), was intended to be a ground that has practical content. The Chief Justice concluded that:

..... the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in court where of course any ground must be made out and that the evidence on the issue is not limited to material that was before the decision-maker.....

The Chief Justice also observed that:

... this conclusion does not offend the principle that, on judicial review, it is not for the court to assume the function of a decision-maker in making findings of fact.  Section 5(3)(b) may be seen as imposing an additional requirement, of which the court itself must be satisfied, before an order of review is granted upon the ground in section 5(1)(h).....

or to interpose paragraph (g) -

.... In circumstances where such a ground is otherwise made out.  The additional requirement will therefore preclude the making of an order of review in a case where, although there was no evidence or other material of a particular fact upon which the decision was based, it is clear enough that the particular fact did exist.  It will preclude review of a decision where the lack of evidence of a particular fact may be characterised as a mere technical deficiency.  But the requirement goes very much further than this because the onus of proving the non-existence of a fact rests on the applicant.  This may erect an insurmountable obstacle to an applicant in some cases but that obvious consequence must be taken to reflect a deliberate policy choice by the Parliament.

In considering whether a fact was a particular fact upon which a decision was based, the Chief Justice also said at page 220 that:

If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact.

Reference was made to what Mason CJ had said in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 357-358 to the effect that section 5(3)(b) was directed to proof of the non-existence of a fact critical to the making of the decision.

Reference was also made to Luu v. Renevier (1989) 91 ALR 39 at 47 where the Full Court of this Court (Davies, Wilcox & Pincus JJ) used the word critical to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision. If a decision is in truth based in that sense on a particular fact for which there is no evidence and the fact does not exist the decision is floored whatever the relative importance of the fact.

Those comments seem to me to be inconsistent with a notion that it is permissible for an applicant having, in effect, made a concession before the Tribunal, to complain later on that the concession was misplaced. One could perhaps understand a situation where a concession had been made in error and subsequently it had become apparent that the concession was made mistakenly. There has, however, been no attempt made by the applicant to explain why the admission was made on her behalf which says quite unequivocally that the documents were in fact received on 17 March 1990.

In those circumstances, it seems to me undesirable that it would be permissible for further evidence to be given before the court designed to contradict the concession made. The evidence in question was designed to prove the fact that the documents in question had been posted to the department on or about 5 or 6 March 1990. Reliance was then intended to be placed upon the effect of the Evidence Act that the documents were to be presumed to have been delivered within 4 days thereafter.

Nevertheless, section 34 must be relevant to this question. One thing which the evidence before the Tribunal did demonstrate in relation to this matter was that payment of the relevant fee for the documents forwarded under cover of the letter of 5 March 1990 was not made until 17 March 1990. The form itself contains a note that the application would not be processed until the prescribed fee had been received. There is nothing in the letter of 5 March 1990 to suggest that the fee was in fact paid.

I would conclude, therefore, that even if the evidence sought to be tendered were admitted, the conclusion would be the same, namely, that there was no valid application form lodged prior to 15 March 1990. It would follow on that basis that the proceedings would be dismissed.

There was, however, a further matter which has not yet been resolved, namely, notice of objection to the competency of the application. The original application stated that the applicant received notification of the Tribunal's decision on 29 February 1996 being the date on which the decision was given. However, pursuant to a direction given by the Court an affidavit was filed sworn on 11 March 1997 saying that the applicant was notified of the Tribunal's decision on 5 March 1996 and that the application for review was filed with the Federal Court on 3 April 1996. The latter date is undisputed. If the former date were correct then under terms of section 478, the application was incompetent. The notice of objection to competency was filed on 14 March 1997.  On 26 March 1997 a further affidavit was filed on behalf of the applicant asserting that she was notified of the Tribunal's decision on 6 March 1996.

Much of the hearing today was taken up with evidence as to the question when the applicant was in fact notified of the decision. The matter has been dealt with in a most unsatisfactory manner. Notwithstanding that the question was clearly put in issue on 14 March, there was no proper evidence available as to the circumstances in which the applicant received notice of the decision. Evidence was given by Mr John Young on behalf of the applicant, being evidence that had not been foreshadowed to the respondent. The evidence of the applicant was given through an interpreter. At best of times evidence given through an interpreter is unsatisfactory. The interpretation today left a lot to be desired. In any event, evidence was given by the applicant that she received notification of the decision from two sources, one from her immigration agent and one from the Tribunal. On the other hand, she also gave other inconsistent evidence in relation to those matters.

The question of competency was not finally decided.  I indicated that I would adjourn the hearing of the matter until tomorrow to enable a further attempt to be made on behalf of the applicant to produce the original of the document whereby the Tribunal wrote to the applicant informing her of the decision. Evidence was given that, notwithstanding that it was addressed to the applicant at her apparent residential address, it was in fact delivered to the agent. The whereabouts of the original may well have been critical to determining the question of whether or not the applicant received it on 4 or 6 March 1996.

I asked counsel for the applicant whether in the light of the reasons which I have just given on the merits she still wished to proceed tomorrow with taking up the opportunity I gave her of adducing further evidence concerning the original of the notification. She has now informed me that she does not wish to take that matter up. Accordingly it is appropriate that I resolve the question of competence.

As I have said, the evidence as to the circumstances surrounding the receipt of notification by the applicant of the Tribunal's decision is unsatisfactory. I find it difficult to assess the credit of a witness whose evidence is given through an interpreter in circumstances where, on many occasions, it was difficult to understand what the interpreter was saying. That, of course, is not meant to be critical of the interpreter. However there was simply no satisfactory explanation given for the affidavit of 11 March 1997. A law clerk employed by the applicant's solicitor gave evidence that she prepared the affidavit of 11 March 1997 on instructions from her principal, Mr Wallace. She said she understood that Mr Wallace had received instructions from the applicant but she did not know what the instructions were. Mr Wallace gave no evidence about the matter.

Having regard to the baldness of the assertions made in both of the affidavits I would have regarded it as incumbent upon the practitioner who caused those documents to be prepared to explain any error or misunderstanding on his part or on the part of those employed by him. His failure to do so leads me to conclude that the original affidavit of 11 March 1997 was prepared in accordance with his instructions.

The explanation given by the applicant as to why she is now able to say that 6 March 1996 was the relevant date was somewhat fanciful. Her evidence was that she remembered it was 6 March because that was the day on which she first met her husband and that was very significant. It is very difficult to understand in that case why she first said she received notification of the decision on 5 March. In the circumstances of the evidence before me, I am certainly not prepared to make a positive finding that the applicant first received notification of the Tribunal's decision on 6 March 1996. Indeed, having regard to the evidence to which I have referred concerning her solicitor, I would be disposed to draw an inference that she was first notified on 5 March 1996. In those circumstances the application should be dismissed as being incompetent in any event.

The orders I make are that the application be dismissed and I order the applicant to pay the respondent's costs.

I do order the applicant to pay the respondent's costs, including the reserved costs.

I certify that this and the preceding twelve pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Dated:               8 April 1997

Heard:            8 April 1997

Place:              Melbourne

Decision:        8 April 1997

Appearances:

Counsel for the Applicant:                W. Boddison

Solicitor for the Applicant:                Armstrong Ross

Counsel for the Respondent:             R.M.  Downing

Solicitor for the Respondent:             Australian Government Solicitor