SZWCA v Minister for Immigration & Anor

[2015] FCCA 1249

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1249

Catchwords:
MIGRATION– Persecution – review of Refugee Review Tribunal decision – visa – protection visa – validity of visa application – refusal.

ADMINISTRATIVE LAW – Application for an extension of time to bring proceeding – no satisfactory explanation for the delay – not in the interests of the administration of justice to extend time – application refused.

PRACTICE & PROCEDURE – Conduct of unregistered migration agent and solicitor – unregistered migration agent referred to Office of Migration Agents Registration Authority – solicitor referred to Law Society of New South Wales.

Legislation:

Migration Act 1958 (Cth), ss.46, 91P, 91Q, 415, 477

SZRIQ v Minister for Immigration & Citizenship (2013) 139 ALD 252
SZNZI v Minister for Immigration [2010] FMCA 57
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212
SZQYM v Minister for Immigration & Citizenship (2014) 220 FCR 505
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135

Applicant: SZWCA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 329 of 2015

Judgment of: Judge Smith

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

Solicitor for the Applicant: Ms A. McIntyre of Goldsmiths Lawyers

Solicitor for the Respondents: Mr A. Markus of Australian Government Solicitor

ORDERS

1. The application for an extension of time to bring this proceeding be dismissed.

2. A copy of the documents and correspondence on the Court’s file, including a copy of this judgment and a transcript of the hearing on 6 May 2015, be provided to the Law Society of New South Wales and the Office of Migration Agents Registration Authority for such action as they consider appropriate.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 329 of 2015

SZWCA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 4 July 2008 on a passport issued by the People’s Republic of China. She was detained by an immigration officer in September 2012 as an unlawful non-citizen and on 18 September 2012 lodged an application for a subclass 457 (Temporary Work) (Skilled) visa. That application was refused. On 17 December 2013 she lodged an application for a protection visa claiming that she had been born in the Democratic People’s Republic of Korea (“North Korea”) and that her family had moved to China when she was a few months old. She claimed to fear that if she were to return to China she would be returned to North Korea and would be mistreated there because it is illegal to leave North Korea without permission. She also claimed during an interview with a delegate of the first respondent (“Minister”) that she had been mistreated by her boyfriend who threatened to report her to the Chinese authorities.

2. On 21 January 2014 the delegate decided to refuse to grant the applicant a visa. Essentially, the delegate found that the applicant was not a credible witness, that she was a Chinese national who had been born in China, had not been mistreated by her boyfriend and would not be deported to North Korea.

3. The applicant applied to the second respondent (“Tribunal”) for review of the delegate’s decision. The Tribunal made a decision on 24 March 2014 setting aside the delegate’s decision and substituting a decision that the protection visa application was not valid and could not be considered. The basis of that decision was that, because the applicant was a national of North Korea, the law of the Republic of Korea (“South Korea”) provided that she was also a national of South Korea. This meant that her application for a protection visa was not valid by operation of s.91P(2) of the Migration Act1958 (“Act”). For that reason, the Tribunal found that it was unable to consider the merits of the applicant’s application.

4. On 11 February 2015, the applicant filed an application in this Court for review of the Tribunal’s decision. The application was purportedly filed on the applicant’s behalf by a Norbert Kelvin, solicitor. Mr Kelvin also completed the “Lawyer Certification” on page 5 of the application form, certifying that “there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success”.

Application for an extension of time

1. In accordance with s.477 of the Act, an application to the Federal Circuit Court had to be made within 35 days of the date of the Tribunal’s decision. The date of the decision was the date of the written notice of the decision, namely 24 March 2014: sub-s.477(3)(b). Therefore any application under s.476 had to be made on or before 28 April 2014. The application was only made some nine and a half months later on 11 February 2015.

2. This Court has power under s.477(2) of the Act to extend the 35 day period as it considers appropriate if:

   a)an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. Mr Markus, who appeared for the Minister, contended that neither of these preconditions had been met.

4. In SZRIQ v Minister for Immigration & Citizenship (2013) 139 ALD 252 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2). His Honour explained the matters relevant to an application under s.477(2) as follows:

   [46]There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”.  The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   [47]The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include:

   (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [48]The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

5. In SZNZI v Minister for Immigration [2010] FMCA 57 Smith FM said this about the Court’s discretion to extend time under s.477(2):

   [11]The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.

6. For a more detailed discussion of the principles applied in relation to the exercise of power to extend time limits, see Enid Campbell and Matthew Groves, Time Limitations on Applications for Judicial Review (2004) 32 Federal Law Review 29 especially at 43-51.

Has the applicant specified why she considers that it is necessary in the interests of the administration of justice to extend time?

1. The first question to consider is whether the applicant has specified in writing in the application why the applicant considers that it is necessary in the interests of the administration of justice to make the order.

2. In the application under the heading “Grounds of application for extension of time” the following was written:

   1.The Refugee Review Tribunal was affected by jurisdictional error by reason that the Tribunal failed to consider a relevant fact that the applicant has been in detention since September 2012. This jurisdictional error attracts the discretion that in the interests of the administration of justice this matter should be granted an extension of time as set out in the grounds below:

   Particulars

   (i)The Applicant’s limited access to proper guidance and advice on her rights which has affected on her decision to appeal the Tribunal’s decision.

   (ii)The Tribunal’s acknowledgement at paragraph 12 that it (the Tribunal) “is unable to conclusively find that the applicant is not telling the truth,” makes the Tribunal’s findings erroneous.

   (iii)With reference to 2 (ii) above, the Tribunal’s decision is not specific on what evidence it has relied on and what evidence it has not relied on.

   2.Due to the standard of representation during the application on 17 December 2013 to the Department of Immigration and Border Control by the Applicant’s former Migration Agent, the Applicant was denied proper advice as to the procedure and the law as it relates to section 91P and section 91Q of the Migration Act 1958.

   Particulars

   (a)The Tribunal stated that the application to the department was not a valid application.

   (b)The department’s delegate had refused the application and did not make any determination to as to its validity

   (c)The Tribunal considered a new matter which was not the subject of appeal, i.e. the validity of the application. Prior to the Tribunal’s hearing the Tribunal was duty-bound to bring the matter about the validity of the application to the Applicant’s attention. The Tribunal’s failure was such as to attract the Court’s discretion.

   3.The Applicant reserves her right to file an affidavit deposing to the reasons for delays such as to enliven the Court’s discretion.

   4.The strength of the grounds of appeal as set out below.

3. It is an interesting point as to whether the condition in sub-s.477(2)(a) requires that the matters set out in the application bear any logical connection to the question of whether it is necessary in the interests of the administration of justice that the period be extended. The condition is framed by reference to what the applicant considers rather than by reference to some objective criterion. In light of that, it is arguable that the condition might be met even where the matters referred to are completely irrelevant to the issue so long as the applicant considers that they are. However, it is not necessary in this case to resolve that issue.

4. In my view, what was written in the application as set out above did satisfy the requirement of sub-s.477(2)(a). That is not simply because it came under the heading in the Court form that referred to that requirement, but because what was written clearly addressed the strength of the applicant’s grounds for review and, in addition, expressly referred to the interests of the administration of justice as well is to a possible reason for the applicant’s delay (see sub-para.1(i)).

Whether it is necessary in the interests of the administration of justice to extend the period under s.477(1)

1. The next question is whether it is necessary in the interests of the administration of justice to make the order. The first issue that arises in this respect is whether there is a reasonable excuse for the delay in commencing the proceedings.

Delay

1. The only possible reason given by the applicant for the considerable delay in commencing these proceedings is a claim that she had limited access to proper guidance and advice on her rights (see sub-para.1(i) set out at [11] above). However, even though in her application she expressly reserved the right to file an affidavit setting out the reasons for the delay, the only affidavit that she has filed, or perhaps more accurately, that has been filed, is that made by Edward Kang on 11 February 2015.

2. That affidavit describes Mr Kang as a businessman although he says that he has known the applicant for many years, “initially in professional capacity but later become personal friend”. The material before the Court suggests that Mr Kang’s professional capacity included acting as a migration agent for the applicant in connection with her application for review to the Tribunal. That application was made on the fax coversheet that, on its face, was sent by Mr Kang. Although the application indicated that the applicant did not want to appoint a representative to act on her behalf, she indicated that she wanted mail to be sent to her authorised recipient and provided a GPO box in North Sydney as the postal address. Mr Kang’s affidavit discloses that his address is in North Sydney.

3. When the Tribunal called the applicant to find the details of her authorised representative she explained:

   … that as her lawyer faxed the form she would call him immediately and asked him to re-facts the application with the name of the authorised recipient and a phone number.

4. The applicant was contacted again in this respect and again said that she would contact her authorised recipient and tell the Tribunal his name. However she never did this. On 12 February 2014 a Michael Tu, of New Legal law firm wrote to the Tribunal requesting an adjournment. On 17 February 2014 he sent the Tribunal a notice of appointment of representative and authorised recipient. The contact details in it were different from that had those that have been given in the Tribunal application form.

5. Mr Kang gave evidence at the hearing conducted by the Tribunal on 18 February 2014. The applicant had given evidence that Mr Kang had translated the questions and her answers in her initial application for a protection visa. The Tribunal’s statement of reasons records the following about Mr Kang’s evidence:

   [44]That Tribunal then spoke to Edward Kang. He stated he was present throughout the application process and had attended the hearings with the applicant as her friend. He also stated she was from North Korea. He stated he wanted to give evidence in relation to interpretation issues. He stated there had been many significant interpretation issues for example she was not married but the Departmental officer had said this in the decision letter. That Tribunal confirmed that the first time he heard that information was from the departmental officer. The Tribunal asked if he interpret the application form. He stated not officially and then said never. The Tribunal again asked. He stated as a friend he looked at it but did not give professional advice. The Tribunal asked if he had translated the application form from English into Korean for her. He stated he could not recall. The Tribunal put to him the applicant said he did. The Tribunal also put to him that in her application form it was said she was married. He stated he could not remember.

   [45]Mr Kang stated he had contacted solicitors for the applicant who advised that within 48 hours she must apply for the 457 visa and she did not know that she could apply for a protection visa. Mr Kang stated that people were trying to make her concede she was a Chinese national and that the Chinese would protect her. He stated she was a North Korean national who would be repatriated by forced to North Korea by North Koreans in conjunction with the Chinese.

6. At the hearing of this matter Ms McIntyre appeared seeking an adjournment of the application. Her evidence was that the principal of her firm, Barrie Goldsmith, had received material in connection with this application on 29 April 2015. Under cross-examination Ms McIntyre said that the documents had been given to Mr Goldsmith by Mr Kang. She explained that Mr Kang had a relationship with her firm and that he was not a registered migration agent.

7. All of these matters raise considerable concern about Mr Kang’s involvement in this matter. In any event, for present purposes what matters is that his is the only evidence to support the application for an extension of the period within which to bring proceedings. Thus, it is of even greater concern that the content of that affidavit is, to a large extent merely copied from the claims made by the applicant in her protection visa application: see Court Book pages 28 – 29. In addition to that, Mr Kang explains a number of matters that the applicant had apparently told him such that she was very afraid of being sent back to China because she feared she would be sent by the authorities back to North Korea. In short, Mr Kang’s affidavit does not give any explanation for the applicant’s failure to lodge her application for judicial review within the 35 day period.

8. I note that, while notification of the decision was sent to the applicant’s authorised recipient, there is no sufficient basis to conclude that the applicant was unaware of the decision.

9. I find that there is no reasonable excuse for the considerable delay in bringing these proceedings. This factor weighs heavily against an order extending the period within which to bring an application for judicial review.

Merits

1. The next issue is whether there are sufficient prospects to warrant the extension of time.

2. As can be seen from [11] above, some of the matters raised in support of the extension of time go to the merits of any substantive application. Before returning to those it is convenient to deal with the matters set out under the grounds of application in the application for an extension. Those are:

   1.The Applicant was denied the opportunity to properly give evidence due to the inadequacy of the translation.

   (i)Section 425(1) of the Migration Act provides a mandatory requirement in this regard.

   (ii)Failure to do so is a failure to comply with a mandatory requirement and as such is a jurisdictional error.

   (iii)While the applicant appear before that Tribunal, the failure of the Applicant to comprehend the main issues could have affected her ability to provide satisfactory answers.

   [2.]The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects:

   a)the Tribunal was unreasonable as it failed to consider that the applicant’s lack of access to timely and quality advice.

   b)The failure by the Tribunal to exhaust all avenues to get a NAATI accredited interpreter may led the applicant to misunderstand the questions and the member to misunderstand the answers.

   c)The importance of the issue in that refusal will amount to removal from the country.

Ground 1

1. It may be accepted that inadequate interpretation at a hearing might constitute a breach of s.425 of the Act or a denial of procedural fairness: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212. However, there is no evidence in this case to support the proposition that there was inadequate interpretation before the Tribunal. Indeed, on the evidence before the Court, the interpretation appears to have been entirely adequate.

2. First, the applicant had always indicated that she had a good working knowledge of the Mandarin language but spoke the Northern Korean dialect. Mr Kang also deposed to that effect. Secondly, when an interpreter in the North Korean language was unable to be located, the applicant was offered the choice of an interpreter in either the Korean language or Chinese. She chose the former. Thirdly, at the beginning of the hearing the Tribunal indicated to the applicant that she should indicate to it if she thought there were any issues with the interpreter. However, she did not raise any such issues. Fourthly, as noted above, Mr Kang, who had translated the protection visa application for the applicant, was present at the hearing. There is no indication before me that he raised any issues with the interpretation either even though he appears to have been able to speak Korean, being from Korea himself. I conclude that he did not.

3. For those reasons this ground is bound to fail.

Ground 2

1. The second ground raises three matters. The first was the Tribunal’s failure to consider the applicant’s lack of access to timely and quality advice. The fact is that the applicant was represented by a lawyer at the Tribunal hearing and otherwise for the purposes of the review. That lawyer appears to have been able to address the critical issues in the proceedings, namely the nationality of the applicant and its impact upon the issues to be determined by the Tribunal.

2. The second is the Tribunal’s failure to obtain a NAATI accredited interpreter. This is repetitious of the first ground and will fail for the same reason.

3. The third matter does not address any error made by the Tribunal but rather goes to the exercise of discretion in relation to the extension of time.

Extension of time grounds

1. I turn then to the matters in the application appearing under the grounds for the application for extension of time. The first of these relevant to the substantive matter is the allegation that the Tribunal’s finding that it could not conclusively find that the applicant was not telling the truth led it into error. The particular error appears to be that the Tribunal did not in its statement of reasons specify the evidence it relied on and what evidence it did not rely on. This ground is patently incorrect. The Tribunal referred expressly in its statement of reasons to the evidence upon which it relied in making its findings. That evidence, set out at [11] of the Tribunal’s reasons, was given by the applicant, namely that she was born in North Korea and had a Chinese passport which had been fraudulently bought for her by her parents. This ground is hopeless.

2. The second matter is that the applicant was denied proper advice as it relates to ss.91P and 91Q of the Act. The inadequate advice, however, was said to relate to the application made to the Department on 17 December 2013. Even if it were accepted that the applicant was inadequately advised at that point, no complaint has been made about her legal representation before the Tribunal. Thus it is difficult to see how such inadequate representation might have affected the exercise of the Tribunal’s jurisdiction to review the delegate’s decision.

3. The second matter is also subject to three particulars. Those particulars do not seem to have any bearing on the matter. Rather, they complain that the Tribunal considered a new matter which was not the subject of the “appeal”. The complaint is that the Tribunal was bound to bring this new issue to the attention of the applicant but failed to do so. This ground is hopeless. At the hearing, the Tribunal put to the adviser that if the applicant was a citizen of North Korea that she could also be a South Korean citizen and s.91P of the Act stated that if a person was a national of two countries then they first had to gain the appropriate exemption from the Minister in order to lodge a protection visa. It further stated that as there was no permission, the application may not be valid. After the hearing, by letter dated 21 February 2014, the Tribunal address this issue again, indicating to the applicant that there was information from the Department of Foreign Affairs and Trade on the effect of North Korea nationality and repeating what it said to the adviser at the hearing that there may not be a valid application. In those circumstances the applicant was put on notice of the issue of the validity of her protection visa application on this ground is bound to fail.

4. None of the matters raised by the applicant has any merit.

Other grounds

1. One possible issue not raised by the applicant is that the question of the validity of her protection visa application is ultimately one to be decided by the Court. That is to say that, although the Tribunal was entitled if not required to determine that issue, the court need not find any error in the Tribunal’s reasons and into jurisdictional error in order to come to a different conclusion. That arises from the fact that the determination of whether a non-citizen is a national of, or entitled to re-enter and reside in, more than one country is a jurisdictional fact to be determined under s.91N as a precondition to the operation of s.91P in relation to the validity of an application for a visa by the non-citizen: SZQYM v Minister for Immigration & Citizenship (2014) 220 FCR 505 at 518 [46]. It is the task of the Court in an application of this kind to make a determination of whether the jurisdictional fact exists on the evidence presented to it: Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135.

2. The task of determining the nationality of a non-citizen for the purposes of s.91P is to be undertaken by reference solely to the law of the countries in question, in this case North Korea and South Korea. The law of a foreign country is ordinarily a question of fact. For that reason, where the issue arises it is commonly the subject of expert evidence as to the law of the relevant foreign country. Here, there is no such evidence. Although I am not determining this issue on a final basis, I have considered the material available to me and conclude that the most likely finding on the balance of probabilities would be that the applicant was a national of two countries, namely North Korea and South Korea.

3. Importantly, the applicant stated time and again throughout the process of her protection visa application and the review before the Tribunal that she was a North Korean. For example, in written submissions prepared by her lawyer dated 20 March 2014 it was stated:

   The essential integer of the applicant’s claim was that because her parents escaped with her from China to North Korea, and obtained citizenship unlawfully, she did not gain Chinese citizenship lawfully or lost North Korean Citizenship. As a result, the applicant remains North Korean. (Emphasis added)

   and

   The applicant gave sworn evidence, on the 30 July 2013, that she is North Korean as follows:

   ivI do not know where in North Korea I was born because I was only a few months old when my family left North Korea to live in China.

   vI speak most naturally the Northern dialect of Korean.

   and further still:

   Loss of North Korean citizenship must be granted by the People’s Assembly. There is no other way of abandoning North Korean Citizenship otherwise.

   In other words it is impossible for the Applicant to have renunciated her North Korean Citizenship.

4. There is also evidence obtained by the Department of Foreign Affairs and Trade after consultation with the Ministry of Unification of South Korea. That Department advised:

   Article 3 of the Constitution states: “the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands”. North Korea is located on the Korean peninsula. On this basis, citizens of the (North Korea) are treated as citizens of the (South Korea) automatically by virtue of their residence on the Korean peninsula. Provisions of the nationality act governing acquisition of (South Korean) nationality by birth therefore apply equally to people of South and North Korea.

5. Although the reference to “residence” might not readily apply to the applicant, who seemed not to have resided in North Korea for very long, the gist of the paragraph is that a person born in North Korea is a national of South Korea.

6. The combination of that evidence supports the conclusion that the applicant is a national of two countries. In light of that, and because the Minister has not given any written notice under s.91Q, sub-s.91P(2) operated so that the applicant’s application for a protection visa was not a valid application.

7. The Minister is obliged not to consider an application for a visa unless it is a valid application: s.47. An application that is invalid because of s.91P is not a valid application for the purpose of s.47: sub-s.46(1)(e)(vi). On review, the Tribunal had the power to set aside the decision of the delegate and to substitute a new decision: sub-s.415(2)(d). For that reason, the Tribunal made no error when it made a decision to set aside the delegate’s decision refusing to grant a protection visa and substituting a decision that the protection visa application was not valid and could not be considered.

8. For those reasons, there are insufficient merits in this matter to warrant an extension of time.

Other matters

1. In addition to the question of delay in the merits of the case, I have taken into account the fact that there is no right of appeal from a judgment of this Court that makes an order or refuses to make an order under sub-s.477(2) together with the claim by the applicant in her application that the matter is one of importance to her as refusal amounts to removal from the country.

2. However, taking into account the failure by the applicant to give any explanation for the significant delay in seeking judicial review and the fact that there appear to be no merits of any ground that might be raised in a substantive application as well as the other matters just mentioned, I find that it is not necessary in the interests of the administration of justice to make an order extending the period under s.477(1) of the Act.

Conclusion

1. The application for an extension of time to bring this proceeding will be dismissed with costs.

2. The matters that I have considered in relation to Mr Kang’s involvement in this matter give rise to a number of concerns including potential breaches of the Act: see for example, s.280. I am further concerned about the conduct of the solicitor on the record in these proceedings, Norbert Kelvin. Those concerns are sufficiently serious for me to refer the papers to both the Office of Migration Agents Registration Authority and the Law Society of New South Wales.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 14 May 2015