Kim v Minister for Immigration
[2013] FCCA 1526
•3 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIM v MINISTER FOR IMMIGRATION | [2013] FCCA 1526 |
| Catchwords: MIGRATION – Capacity of parent to apply for a visa on a child’s behalf – whether child’s maturity negatived parent’s power to apply for a visa on child’s behalf. ADMINISTRATIVE LAW – Failure to take relevant consideration into account. |
| Legislation: Migration Act 1958, ss.5, 46, 48, 48A, 65, 351, 501, 501A, 501B Migration Regulations 1994, regs.1.03, 1.12, 2.12, cl.1123B of sch.1 |
| Cases Cited: Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397 Re Woolley;Ex parte Applicants M276/2003 (2004) 225 CLR 1 Soondur v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 578 Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 |
| Applicant: | YUJIN KIM |
| Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| File Number: | SYG 179 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 24 September 2013 |
| Date of Last Submission: | 24 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr I.G.A. Archibald |
| Solicitor for the Applicant: | Mr A. Tees |
| Counsel for the First Respondent: | Mr B.D. Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue bringing the 18 January 2013 decision of the respondent’s department into this Court to be quashed.
A writ of mandamus issue directing the respondent’s department to re-determine according to law the validity of the applicant’s application made to it on 17 January 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 179 of 2013
| YUJIN KIM |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17 January 2013 the applicant, who is a citizen of South Korea, sought to lodge an application for a Student (Temporary) (Class TU) subclass 573 visa with what was then the Department of Immigration and Citizenship (“Department”). On 18 January 2013 an officer in the Department wrote to the applicant advising her that, by virtue of s.48 of the Migration Act 1958 (“Act”), her application was invalid because, relevantly, since last entering Australia she had been denied an Other Family (Residence) (Class BU) subclass 835 (Remaining Relative) visa. The applicant has applied to this Court for judicial review of that decision.
For the reasons which follow, the Department’s decision will be set aside and the matter remitted to be determined according to law.
Relevant legislation
Section 46(1)(d) of the Act provides that a visa application is valid if, among other things, s.48 does not prevent it from being so. Section 48 relevantly provides:
48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) …
(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied …
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
A substantive visa is defined in s.5(1) of the Act as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. The classes of visa which are prescribed for the purposes of s.48(1) are found in reg.2.12(1) of the Migration Regulations 1994 (“Regulations”) and do not include student visas and, specifically, the student visa which the applicant sought in January 2013.
One of the criteria which the applicant’s family had to satisfy at the time they made their Other Family (Residence) (Class BU) visa application in 2008 was cl.1123B(3)(c) of sch.1 to the Regulations. At the relevant time it provided:
Application by a person claiming to be a member of the family unit of a person who is an applicant for an Other Family (Residence) (Class BU) visa may be made at the same time and place as, and combined with, the application by that person.
Regulation 1.12(1)(b) provides that a member of a family unit includes a dependent child of a “family head” and reg.1.03 relevantly defines a dependent child as a child who has not turned eighteen.
Background facts
It was agreed that:
a)the applicant was born on 11 September 1993 in South Korea and first arrived in Australia on 12 January 1996 under another name. On 21 January 2008 the applicant arrived in Australia under her present name;
b)on 24 January 2008, the applicant’s father lodged a valid application for an Other Family (Residence) (Class BU) visa in which the applicant and her mother were included as members of his family unit. The family’s visa applications were refused by a delegate of the respondent on 11 May 2010 and the Migration Review Tribunal (“Tribunal”) affirmed the delegate’s decision on 14 February 2011;
c)on 27 October 2011, the applicant sought ministerial intervention under s.351 of the Act. By letter dated 20 December 2012, she was notified that the Minister had decided not to exercise his s.351 power in her case; and
d)as already noted, on 17 January 2013, the applicant sought to lodge an application for a Student (Temporary) (Class TU) subclass 573 visa which was rejected by the Department as not being valid.
Evidence
Yujin Kim
The applicant deposed that she was aware, based on information provided to her by her solicitor, that on 24 January 2008 her father had applied for a[n Other Family (Residence) (Class BU)] subclass 835 Remaining Relative visa and that she had been included in that application as a member of his family. She deposed that at the time the application was made, she had not been aware of it or that she had been included in it. She deposed that the signature appearing above her name on p.21 of the visa application form was not hers. The applicant deposed that in January 2013 she was first advised, by her current solicitor, that her father had sought a review of the decision to refuse him and his family the subclass 835 visa. She deposed that until she received this advice in January 2013, she had also not been aware that her father, then known by a different name, had applied for a subclass 805 visa in 1999, that he had applied for a subclass 856 visa in 2003 or that he had applied for a subclass 115 visa in 2005.
The applicant deposed that when she was in South Korea in December 2007, her mother told her that they were changing their names, which was legal, in order to be able to return to Australia and that her new name was Yujin Kim. She deposed that she was fourteen years old at the time and had not signed any documents or been given any choice in the matter. The applicant deposed that her mother had told her “Your father has done it all for you”.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The delegate erred in finding that the Visa Application was invalid because it did not meet section 48 of the Migration Act 1958 (“the Act”) on the basis that the applicant did not hold a substantive visa and after last entering Australia she had been refused a class BU visa on 31 May 2010.
Particulars
a. The delegate failed to take into account that section 48 of the Act had the effect that the applicant was not prohibited from applying for the Student (Temporary) (Class TU) Higher Education Sector (Sub-class 573) visa, as the applicant after last entering Australia had not been refused a visa other than a bridging visa or a visa under section 501, 501A or 501B of the Act, for which the applicant had applied.
The applicant submitted that:
a)she had not applied for a visa in 2008;
b)in 2008 she lacked legal competence and thus could not have been a visa applicant at that time; and
c)if she did have legal capacity she had not authorised her father to make the visa application on her behalf.
Did the applicant apply for a visa in 2008?
The applicant relied on Dranichnikov v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 397 in support of the first of her submissions. However, that case is distinguishable from the present case. In Dranichnikov, the Full Court of the Federal Court was concerned with s.48A of the Act which at the time provided:
(1)Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); …
may not make a further application for a protection visa while in the migration zone.
…
(2) In this section:
‘application for a protection visa’ includes:
(a)an application for a visa … a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; …
The wording of that provision as it stood at the time of Dranichnikov is materially different from s.48 as it may apply in the present case in that it spoke of a person having made an application for a protection visa, which was a defined term, and having been refused. Section 48 speaks of an applicant having been “refused a visa … for which [he or she] had applied”. In the version of s.48A considered in Dranichnikov, the appellant had been included in her husband’s earlier protection visa application as a family member and thus had not applied for a protection visa in her own right. As she did not claim to be entitled to a protection visa in a sense defined in s.48A, her inclusion in her husband’s protection visa application did not amount to a protection visa application by her too. Section 48 operates quite differently because it encompasses all visas for which an applicant might have applied and covers all refusals apart from those in respect of bridging visas or those made under ss.501, 501A and 501B of the Act, none of which are relevant to the applicant’s case.
Consequently, the visa which had been sought on the applicant’s behalf in 2008, an Other Family (Residence) (Class BU) visa, falls within the scope of visas to which s.48 refers with the result that if it is held that the applicant did apply for it, the officer was correct to conclude that the visa application the applicant lodged on 17 January 2013 was not a valid application.
Could the applicant have applied for a visa in 2008?
The applicant submitted that if she had not been legally competent in 2008 then she could not have applied for a visa. That submission does not reflect the visa application form which was completed and lodged in 2008 which made it clear that persons under eighteen, or sixteen in relation to the “Acknowledgment regarding social security payments”, were not required to sign it. The form assumes that children under eighteen who are identified as migrating with the principal applicant are included in the application. Indeed such an interpretation is supported by cl.1123B(3)(c) of sch.1 to the Regulations as it stood on 24 January 2008 and which was quoted earlier. Moreover, it reflects the law. If the applicant was unable to make an informed decision in 2008 whether to apply for a visa, her father was able to apply on her behalf: Re Woolley;Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 40 [103] per McHugh J and 56-57 [155] per Gummow J, and the officer would not have erred in finding that she had made an unsuccessful visa application in 2008.
It was submitted for the applicant that observations made by Gray J in Soondur v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 578, Goldberg J agreeing, were applicable to the question whether she could have applied for a visa in 2008. Relevantly, his Honour said:
Of particular relevance to a case such as the present is a further element that must be considered in determining whether an applicant “has made” a previous application. It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance. The making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application. At common law, infants (that is, persons under the age of 21) were regarded as lacking capacity to do many things, particularly to enter into contracts other than certain defined classes of contracts. Commonly, the age of majority has been reduced by statute to 18. There is statutory recognition of the potential incapacity of a person not of full age who has come to Australia unaccompanied by an adult. Section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) provides that the Minister shall be the guardian of the person and of the estate of such an infant. See X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524. Further, Pt B of form 866 contains the instruction:
“To be signed by all the persons named in question 1.
If any of the applicants who should answer this question and sign the declaration is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf.”
Part D of the same form above the box reserved for signature, contained the following instruction:
“To be signed by the applicant. If the applicant is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf.”
These instructions make it clear that want of full legal capacity, resulting from being under 18 years old, is seen as relevant to the making of an application for a protection visa. (at 590 [35]-[37])
That case concerned a visa application which had been signed by a minor as part of her mother’s family group. In this case the relevant application was one which, I accept, the applicant did not sign and of which she was unaware. The evidence demonstrates adequately enough that the applicant’s participation in the 2008 visa application was undertaken on her behalf by her father. Indeed, I find that wherever a signature appears above the applicant’s name on the January 2008 visa application form it is the applicant’s father’s and that he signed it on the applicant’s behalf. Consequently, Soondur is of no particular assistance in the present case.
If the applicant had legal capacity were her father’s actions unauthorised?
The approach adopted by the High Court in Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s case”) (1992) 175 CLR 218 to the question whether a parent may act for a minor child was that parental rights exist only so long as they are needed for the protection of the person and the property of the child. It was held, in the context of medical procedures, that a minor is capable of giving informed consent to such a procedure when he or she achieves an understanding and intelligence sufficient to enable him or her to understand fully what is proposed: Marion’s case at 237-238. As McHugh J later said in Woolley:
Parents in their capacity as guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision. … Parental authority diminishes as the child’s legal competence emerges. The parent’s authority is at an end when the child has sufficient intellectual and emotional maturity to make an informed choice. (at 40 [103])
An observation to similar effect was also made in Woolley by Gummow J at 57 [155].
Consequently, if in January 2008 the applicant was of sufficient maturity that she could make an informed decision about whether to apply for a visa, her parents had no power to do so for her. A further implication of the decisions in Marion’s case and Woolley is that if a parent acts for a child in a matter on which the child can make an informed decision, the parent will only have acted on the child’s behalf if the child authorised that action. The question of whether subsequent ratification might also be possible did not arise in the present case.
The Minister submitted that the applicant’s argument that she had not applied for a visa carried with it an unworkable implication that the delegate in 2008 did not make a decision under s.65 to refuse the Other Family (Residence) (Class BU) visa, that the Tribunal’s decision on that refusal was made without jurisdiction and that there was therefore no Tribunal decision in respect of which the applicant could have subsequently sought ministerial intervention. However, the Tribunal’s jurisdiction does not depend on the validity of the original application for a visa and a party is entitled to advance alternative and inconsistent claims.
The relevant question therefore is whether in January 2008 the applicant had achieved an understanding and intelligence sufficient to enable her to understand fully what an Other Family (Residence) (Class BU) visa involved and whether in the circumstances of her parents seeking visas to stay in Australia she might wish to apply for one.
That is a matter on which there is no clarity because the officer made no findings on the question. This appears to have arisen out of the fact that the applicant’s 2013 visa application was rejected almost upon receipt and without enquiry or request for submissions.
The absence of any further communication between the Department and the applicant meant that the officer was in no position, and failed, to consider whether the applicant’s father had the authority to make a visa application on the applicant’s behalf in January 2008. Although in cases where a child is plainly too young to make decisions of that sort the issue needs no lengthy consideration by the Department, the fact that a person is a minor does not automatically lead to their parents being able to make every decision for them. As Marion’s case and Woolley show, the older a child becomes, the more competent he or she becomes in making informed decision. As the applicant was fourteen in January 2008, the officer could not assume that she was not competent at that time to make an informed decision on whether to apply for an Other Family (Residence) (Class BU) visa or that her father was able to apply on her behalf.
Those were issues to which the officer should have turned his mind when considering whether the applicant had made an unsuccessful visa application in 2008. He erred by not considering them.
Conclusion
The officer’s error was a jurisdictional error. Consequently, the matter will be remitted to the Department to be determined according to law. On remittal it will be necessary, before deciding whether the applicant’s 2013 application was or was not valid, that the Department consider and make findings on the issues which its officer failed to consider in January 2013.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 3 October 2013