FEDERAL COURT OF AUSTRALIA

Quan v Minister for Immigration and Border Protection [2013] FCA 1239

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or assessed.

3.    The title of the first respondent be amended to “Minister for Immigration and Border Protection”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REASONS EXPANDED FROM EX TEMPORE JUDGMENT

1    By an application filed on 9 October 2013, the applicant seeks an extension of time to appeal from the judgment of Judge Emmett of the Federal Circuit Court of Australia delivered on 2 September 2013: Quan v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1254 (Quan). The primary judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (MRT) dated 11 April 2013. Rule 36.03 of the Federal Court Rules 2011 (Cth) (Rules) allows 21 days for filing a notice of appeal; the application to extend time is therefore 16 days after the period allowed for filing a notice of appeal under the Rules.

2    Because the applicant is currently in detention at Villawood Immigration Detention Centre, the Court has tried to address this application expeditiously; the Court set down the hearing of the application for 30 October 2013. The representative of the first respondent (Minister) provided detailed written submissions. However, the applicant’s solicitor (Mr David Mendelssohn) ceased to represent her shortly before the hearing and provided no written submissions. Mr Mendelssohn represented the applicant at the hearing before the primary judge and he swore and filed an affidavit in support of the application for extension of time which annexed a draft Notice of Appeal. A new lawyer had first contact with his client at the hearing.

3    Accordingly, and having regard to the proposed grounds of appeal, the matter was stood over to 18 November 2013; the applicant’s new representative was given leave to file written submissions and he has taken that opportunity. It appears from communications with Chambers and the Court’s Registry that the applicant’s legal representatives have been identified by the migration agent whom she named for receipt of documents in relation to her 457 visa application.

4    The Court raised for submission the question of whether it may be in the interests of the applicant to file an application for a protection visa rather than pursuing the course on which the applicant had embarked. At the hearing on 18 November 2013, the applicant’s solicitor confirmed that the applicant was aware that she was able to apply for a protection visa and the potential consequences of not doing so, and his instructions were that she did not wish to apply for a protection visa.

Background

5    The applicant claims that she was born in North Korea and had been taken to China as a child; she fled persecution in China and fears persecution in the future on the basis of her Korean ethnicity and being returned to North Korea from China; she was prevented from making a visa application earlier in Australia by her fear, lack of financial resources and ignorance of Australian law and she is suffering psychological problems as a result of her detention.

6    The applicant entered Australia on 4 July 2008 using a South Korean passport in a different name; she was granted a 3-month tourist visa (Electronic Travel Authority) which expired on 4 October 2008 and the applicant remained in Australia at all times since the tourist visa expired. The applicant came to the notice of the police on 9 September 2012 after a traffic incident; she has been detained at the Villawood Immigration Detention Centre since then.

7    Using a Chinese passport in the name of Yingai Quan, the applicant applied for a Temporary Business Entry (Class UC) Subclass 457 (Long Stay) visa (457 visa) on 17 September 2012. She applied as a person nominated by a business; her “sponsoring employer” was Teammembers Project Pty Limited of Belmore, NSW (Teammembers). By email on 30 November 2012, the Department of Immigration and Citizenship approved Teammembers’ business nomination of the applicant as a customer service manager. The applicant’s evidence to the Tribunal was that Teammembers offered her a job and to sponsor her after she had been detained on 9 September 2012 and she had not previously been able to obtain a sponsor or to work in Australia.

8    A delegate of the Minister made a decision to refuse the 457 visa on 10 January 2013 because he was not satisfied that the applicant met cl 3004(c) of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations), and it is a requirement of cl 457.211(b)(ii) of Schedule 2 of the Regulations that the applicant satisfy cl 3004.

9    The Tribunal decided to affirm the delegate’s decision on the basis that the applicant could not satisfy cl 3004(f)(i): she would not have been entitled to the grant of a 457 visa had she applied for one on 4 October 2008, the last day she held the tourist visa, the only substantive visa she had held. This is because on her own evidence she had no-one willing to be a sponsoring employer on 4 October 2008 who met all of the technical requirements in place at that time under cl 1223A of Schedule 1 and cl 457.223(4). The Tribunal found that even though those requirements have since changed and her current 457 visa application would meet the requirements of cl 1223A of Schedule 1 and cl 457.223(4) as they now stand, she would not have been “entitled” to the grant of a 457 visa under the requirements in place on 4 October 2008 as she could not have made a valid application because she could not meet the then applicable requirements nor could the Minister have been satisfied that she did, as would be required under s 65 of the Migration Act 1958 (Migration Act).

10    The Tribunal considered that, as all of paragraphs (c) to (h) cl 3004 must be satisfied, it was unnecessary for the Tribunal to determine whether cl 3004(c) and cl 3004(d) had been met if cl 3004(f) was not. The applicant’s claims to fear persecution if returned to China may have been relevant to a consideration of cl 3004(c) and cl 3004(d).

11    The applicant was represented at the Tribunal hearing by her migration agent and written submissions were provided on her behalf to the Tribunal both before and after the hearing.

Federal Circuit Court

12    Although the applicant raised six grounds in her amended application of 1 August 2013 for judicial review of the Tribunal’s decision by the Federal Circuit Court (Amended Application to FCC), the primary judge says at [35]-[37] of Quan that the applicant’s solicitor, Mr Mendelssohn, accepted that the applicant was required to meet all of the criteria in cl 3004 of Schedule 3 of the Regulations and failure to meet any one of them had the consequence that a 457 visa must be refused. He also confirmed that the applicant’s complaint was encapsulated as follows and did not press the other grounds:

Whether the MRT should have considered the consequences for the applicant of repatriation to North Korea in considering cl.3004(d) as to whether there were compelling reasons to grant the visa.

13    I am satisfied from my reading of the transcript of the proceedings that that is an accurate description of what took place.

14    The primary judge notes that cl 3004 makes it clear that in addition to there being compelling reasons for the grant of a 457 visa, the applicant must have been entitled to the grant of that visa if she had applied on 4 October 2008, the date of her last substantive visa, and the applicant was not because she did not have sponsorship at that time. Her Honour found that the Tribunal’s findings and decision were open to it on the evidence and material before it and for the reasons that it gave. It was not necessary for the Tribunal to consider whether there were compelling reasons for the grant of the visa as it had found that cl 3004(f)(i) was not satisfied. Accordingly the complaint was not made out and the primary judge dismissed the application: Quan [38]-[42] and [46].

Full text of the grounds of the application to the Federal Circuit Court

15    The full text of the grounds of appeal in the amended application filed on 1 August 2013 (Amended Application to FCC) were (errors in the original):

1.    THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS IN DENYING HER THEN REPRESENTATIVE TO ASSIST THE APPLICANT IN PRESENTING HER CASE.

Particulars of Ground 1

(a)    The Applicant is not fluent in the English language to the point of being able to properly present her case to the Migration Review Tribunal and had to try to do so through an interpreter.

(b)    She was not aware of the way in which the Migration Review Tribunal processes applications nor was she in a position to properly present the facts on which she relied.

(c)    In this respect, the Tribunal should have allowed the Applicant the services of a Registered Migration Agent who could have properly presented the Applicant’s case but this was denied by the Tribunal.

2.    THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS IN NOT ALLOWING HER THE OPPORTUNITY TO PROPERLY CONSIDER HER LEGAL POSITION, GIVEN HER LIMITED FACILITY IN THE ENGLISH LANGUAGE.

Particulars of Ground 2

(a)    The Applicant speaks the North Korean dialect of the Korean language, which is not in many respects the same as the South Korean dialect so that even a competent speaker of the South Korean dialect may have some difficulty in always being able to properly understand and translate for the Applicant.

(b)    The Applicant needed a competent translator in the North Korean dialect to properly allow her to consider her legal options with the advice of a Registered Migration Agent who could advise her.

3.    THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT’S APPLICATION FOR REVIEW ACCORDING TO LAW, IN TAKING A VIEW OF THE MIGRATION ACT AND REGULATIONS THAT WAS UNNECESSARILY LIMITED AND CONSTRICTED AND WHICH FITTED WITH THE TRIBUNAL MEMBER’S PERSONAL VIEWS RATHER THAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW.

Particulars of Ground 3

(a)    The Tribunal Member failed to give proper consideration to the reasons why the Applicant was forced to enter Australia on a false passport and failed to take into consideration the situation in the Peoples Republic of China of persons of North Korean origin who did not have substantial economic means.

(b)    The Tribunal Member therefore regarded the Applicant as being no different to any other unlawful entrant to Australia and this constituted a failure to afford the Applicant procedural fairness.

(c)    The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances.

(d)    The Tribunal Member also failed to afford the Applicant procedural fairness in not recognising the factual circumstances in which the Applicant found herself subsequently in Australia, having to find work in order to support herself.

(e)    The Tribunal Member also failed to give proper consideration to the fact that the Applicant had an approved 457 Visa sponsor and effectively discounted this important consideration.

4.    THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT’S APPLICATION FOR REVIEW ACCORDING TO LAW BY FAILING TO TAKE INTO CONSIDERATION THE APPLICANT’S PERSONAL CIRCUMSTANCES AND THE LIKELY CONSEQUENCES FOR THE APPLICANT IF REPATRIATED TO THE PEOPLES REPUBLIC OF CHINA AND FROM THERE TO THE DEMOCRATIC PEOPLES REPUBLIC OF KOREA, OTHERWISE KNOWN AS NORTH KOREA.

Particulars of Ground 4.

(a)    It is now well known that, even though the Government of the Peoples Republic of China has at best a tense relationship with the Government of the Democratic Peoples Republic of Korea, otherwise known as North Korea, it nevertheless has a policy of repatriating to North Korea persons of North Korean origin who are, in one way or another, in the territory of the Peoples Republic of China.

(b)    There is also now a considerable body of independent evidence that persons so repatriated are treated with the greatest harshness, even in some cases being executed but frequently subjected to torture, as they are considered to be traitors to North Korea for having left that country, even in the case of the Applicant, who was an infant of approximately one year of age when her family took her from North Korea to China.

5.    THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT’S APPLICATION FOR REVIEW ACCORDING TO LAW BY FAILING TO PROPERLY CONSIDER WHETHER THE APPLICANT WAS ENTITLED TO THE SUBCLASS OF VISA FOR WHICH SHE APPLIED UNDER PROVISIONS OF THE MIGRATION ACT AND REGULATIONS TO WHICH THE TRIBUNAL MEMBER DID NOT ADVERT.

Particulars of Ground 5

(a)    The Tribunal failed to give proper consideration to the fact that the Applicant could be employed and was offered employment by an approved 457 employer in an occupation for which the Applicant was fitted by her training and experience, that is, in the occupation of tiling.

(b)    Had the Tribunal given proper consideration to that fact, instead of merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant’s case for review.

6.    THE APPLICANT IS IN FACT ENTITLED TO A TEMPORARY BUSINESS ENTRY (CLASS UC) VISA IN ACCORDANCE WITH THE RELEVANT PROVISIONS OF THE MIGRATION ACT AND REGULATIONS.

Particulars of Ground 6

(a)    As already stated in the Particulars for Ground 5, the Applicant has an approved 457 employer who can and will employ her if she is granted the appropriate visa, which in this case is a Temporary Business Entry (Class UC) Visa.

(b)    This employer will employ the Applicant in the occupation for which her training and experience make her competent, that is, tiling.

Order sought

16    The order sought was:

THAT THE APPLICANT BE RELEASED FROM DETENTION IN THE VILLAWOOD IMMIGRATION DETENTION CENTRE OR ANY OTHER IMMIGRATION DETENTION CENTRE

Particulars

(a)    The Applicant has been in the Villawood Immigration Detention Centre since late 2012 and will suffer psychological harm if forced to remain in detention for a further prolonged period of time.

(b)    The Applicant has persons who will provide her with accommodation and food if she is released from detention so that she would not have to work if released.

Documents in support of application

17    The Court has received the following documents in support of the application for extension of time: (1) the affidavit of Mr David Mendelssohn dated 9 October 2013; with (2) the grounds of appeal set out in the draft Notice of Appeal including the orders sought; and (3) written submissions on behalf of the applicant filed on 12 November 2013. The Minister has not provided any written submissions in reply. It is convenient to set these documents out in full.

Affidavit of Mr Mendelssohn

18    Mr Mendelssohns’s affidavit relevantly provides as follows. Although Mr Mendelssohn refers to “Appellants” repeatedly, it appears that he represented only the applicant in the proceedings in the lower court and in relation to this application (errors in the original):

1.    I am the Solicitor for the Appellants and I am authorised to make this affidavit on the Appellants’ behalf.

Facts on which the Appellants Rely

2.    The Appellants were both born in the Democratic Peoples’ Republic of Korea, more commonly known as North Korea and were taken from there to the Peoples’ Republic of China by their parents when they were both young children.

3.    They entered Australia on false South Korean passports and under assumed names because of their well-grounded fear that if they applied for exit visas from the Chinese authorities they would be repatriated to North Korea and face persecution, torture and even death there.

4.    They have an approved 457 Visa sponsor in Australia to perform work for which they are qualified and have obtained presently valid 457 Visas.

5.    If deported to China and from there to North Korea, their likely fate would be extremely dire, a factor which was not given appropriate weight by the Migration Review Tribunal.

6.    The Judge in the Federal Circuit Court was sympathetic to the First Appellant but was unable to find a jurisdictional error in the Migration Review Tribunal Decision.

Reasons for Filing Out of Time

7.    Both Appellants are presently in the Villawood Immigration Detention Centre which provides difficulties to access them to obtain instructions and get them to witness documents, such as Affidavits.

8.    On each occasion that I go the Villawood Immigration Detention Centre, I must take with me a person who is fluent in the Korean language to act as an interpreter. This is not always convenient for the Korean speaker.

9.    For this reason, there was a delay in being able to access the Appellants and obtain their signatures on Affidavits which were translated to them.

10.    Also, an Application to the Federal Court to obtain appropriate refugee visas was rejected because only appeals to the Federal Court are available if the persons concerned had previously been to a Tribunal and then to the Federal Circuit Court.

Other Matters

11.    A Draft Notice of Appeal is attached.

Grounds of appeal and orders sought

19    The grounds of appeal in the draft notice of appeal are:

1.    The Migration Review Tribunal denied the Appellants Procedural Fairness in denying their then representative to assist the Appellants presenting her case, especially given the Appellants’ very limited ability to communicate in the English language.

2.    The Migration Review Tribunal denied the Appellants procedural fairness in not allowing her the opportunity to obtain legal advice as to her position, given the Appellants’ limited ability to comminute in the English language and to understand legal concepts communicated to her in the English language.

3.    The Migration Review Tribunal denied the appellants procedural fairness in not taking into account the Appellants’ position if deported to the Peoples’ Republic of China and from there deported to the Democratic Peoples’ Republic of Korea, otherwise known as North Korea.

4.    The Migration Review Tribunal denied the Appellants procedural fairness in not receiving or properly receiving evidence relating to the treatment of persons born in North Korea who are deported from the Peoples’ Republic of China to North Korea and not giving due and fair weight to that evidence.

5.    The Migration Review Tribunal therefore denied the Appellants procedural fairness in not taking into consideration the Appellants’ personal circumstances and the likely consequences for her if repatriated to North Korea.

6.    The Migration Review Tribunal denied the Appellants procedural fairness in not properly or fairly considering that the Appellants had an approved subclass 457 sponsor and met the criteria for granting to the Appellants of a subclass 457 Visa.

7.    The Appellants is therefore entitled to an appropriate refugee visa as well as a subclass 457 Visa in accordance with the Migration Act and Regulations.

20    The orders sought were:

1.    A Declaration that the Appellants are a refugee with the meaning of the United Nations Convention and Protocol relating to the Status of Refugees.

2.    An Injunction requiring the Minister for Immigration to provide the Appellants with Protection or other appropriate refugee visa.

3.    A Declaration that the Appellants are the holder of a valid subclass 457 Visa.

4.    An Injunction requiring the Minister for Immigration to release the Appellants from Villawood Immigration Detention Centre.

Applicant’s written submissions

21    The applicant’s written submissions are:

1.    The applicant seeks an extension of time to appeal from the decision of his honour Judge Emmett in the Federal Circuit Court of Australia dated 02 September 2013 on the following grounds:

(a)    Affidavit of Mr. David Mendelsshon explaining the reasons for delay was filed on the 09 October 2013 and described in paragraph 7, 8, 9 and 10.

(b)    In paragraph 2 (a) of the submission of the first respondent dated 20 October 2013; the first respondent admits that there is no prejudice to the interest of the respective respondent and therefore the applicant’s appeal should be heard.

(c)    Obscurity as to the Appellant’s need of a qualified interpreter in Korean and/or Mandarin language during the whole review and appeal process.

2.    The appellant seeking relief based on the inherent jurisdiction of the court and seeking Order pursuant to the section 33Z of the Federal Court of Australia Act 1976. Section 33Z states:

Judgment--powers of the Court

(1)    The Court may, in determining a matter in a representative proceeding, do any one or more of the following:

(a)    determine an issue of law;

(b)    determine an issue of fact;

(c)    make a declaration of liability;

(d)    grant any equitable relief;

(e)    make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the Court specifies;

(f)    award damages in an aggregate amount without specifying amounts awarded in respect of individual group members;

(g)    make such other order as the Court thinks just.

(2)    In making an order for an award of damages, the Court must make provision for the payment or distribution of the money to the group members entitled.

(3)    Subject to section 33V, the Court is not to make an award of damages under paragraph (1)(f) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment.

(4)    Where the Court has made an order for the award of damages, the Court may give such directions (if any) as it thinks just in relation to:

(a)    the manner in which a group member is to establish his or her entitlement to share in the damages; and

(b)    the manner in which any dispute regarding the entitlement of a group member to share in the damages is to be determined.

Based on this section the appellant submits that the court has power to give relief as sought in the draft notice of appeal and says:

(a)    The appellant admits that Australia’s obligation towards asylum seekers and refugees are not voluntary. Australian law requires an individual to make an application in that regards to be eligible as an asylum seeker or refugee in Australia. The appellant never made any application to this date to be considered for protection visa. However the appellant submits that she has reasonable fear of persecution if she travels back to the country of origin. The Convention against torture and other cruel, inhuman or degrading treatment or punishment (CAT). Establishes that anyone who has reasonable fear of persecution is entitling to the status of a refugee and Australia as a signatory to the convention has obligation towards any individual who fears persecution.

(b)    Therefore the applicant requests this honourable court to invoke the original jurisdiction and exercise discretion to grant the orders as sought in the Application.

3.    The appellant submits that pursuant to section 20 (1) of the Federal Court of Australia Act 1976 the respective court has power to exercise the original jurisdiction.

Orders Sought by the applicant:

1.    A declaration that the Appellant is a refugee with the meaning of the United Nations Convention and Protocol relating to the Status of Refugees.

2.    An Injunction requiring the Minister for Immigration to provide the Appellants with Protection.

3.    And Injunction requiring the Minister for Immigration to release the Appellant from Villawood Immigration detention Centre.

Relevant principles

22    The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established: they are the length of delay, the explanation for the delay, the presence or absence of prejudice to the respondent and the merits of the proposed appeal: Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-9; Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[17] and SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16].

23    I accept the Minister’s submission as stating correctly the appropriate considerations to be applied by an appeal court in relation to whether leave should be granted to a party who wishes to “resurrect” grounds abandoned at first instance or new grounds propounded for the first time on appeal. These matters go to the merits of the proposed appeal. Those submissions were:

31.    As the Full Court has recently held in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [68]:

All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance.

32.    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, (2005) 147 FCR 51, Madgwick J summarised the questions relevant to a determination as to whether to grant leave to raise new grounds on appeal as including (at 85 [166]):

1) Do the new legal arguments have a reasonable prospect of success?

2) Is there an acceptable explanation of why they were not raised below?

3) How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4) What is at stake in the case for the appellant?

5) Will the resolution of the issues raised have any importance beyond the case at hand?

6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7) If so, can it be justly and practicably cured?

8) If not, where, in all the circumstances, do the interests of justice lie?

33.    MZYPO does not appear to have displaced this summary as the relevant test. However, it does suggest that some real scrutiny should be given to the overall interests of justice.

34.    Similar considerations ought to be taken into account in determining whether to permit an appellant to “resurrect” grounds abandoned at an appeal. In SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436, (2009) 112 ALD 490, Flick J held (at 497 [23]):

It has generally been recognised that the considerations relevant to whether an argument which has previously been abandoned should later be permitted to be “resurrected” include the circumstances in which the argument was previously abandoned, whether a party was legally represented and whether the argument requires further evidence if leave is given. Other considerations include the importance of the argument sought to be raised and any potential prejudice to an opposing party.

35.    His Honour went on to observe that certain factors may be less important where a litigant is unrepresented. However, in the instant case, the applicant was represented before the court below and her draft notice of appeal was prepared by the same legal practitioner.

Consideration

24    The Minister contends that the application for extension of time should be refused because:

(1)     The delay has not been adequately explained, although the Minister accepts that there is no prejudice to his interests;

(2)    The proposed grounds of appeal (including those in the applicant’s written submissions) (Proposed Grounds) lack merit. They do not directly identify any error by the primary judge, although the applicant appeals from the whole of the judgment. Most of the Proposed Grounds of appeal were abandoned before the primary judge or are new grounds and the applicant would require the leave of the Court to advance them; and

(3)    The orders sought in the draft notice of appeal and in the applicant’s submissions are not orders the Court has power to make in this case.

25     The only explanation for the delay in filing the appeal is set out in Mr Mendelssohn’s affidavit. I find the explanation inadequate: the applicant has not provided to the Court an affidavit sworn by the applicant so any delay in arranging access to her with appropriate interpreters for the purpose of obtaining an affidavit is irrelevant. Further, the application to the Federal Court to obtain “appropriate refugee visas” for the applicant is no excuse because such an application would plainly lack merit, and in any event the fact of the commencement of other proceedings does not preclude filing an appeal from the judgment of the primary judge in this proceeding within the period prescribed by the Rules.

26    More importantly, I accept the Minister’s submission that the Proposed Grounds of appeal plainly lack merit and it would not be expedient in the interest of justice to grant leave to the applicant to pursue the grounds which were explicitly abandoned in the court below or to grant leave to argue the new grounds for the first time in this Court; the remedies sought are also inappropriate to an appeal from a decision of the Federal Circuit Court in relation to an application for judicial review of a decision of the Tribunal. Insofar as the draft notice of appeal relates to the remaining ground considered by the primary judge (ground 5 of the draft notice of appeal), it must fail for the reasons identified by the primary judge. My reasons for this view are as follows.

27    First, other than ground 4, the grounds of the Amended Application to the FCC were abandoned explicitly before the primary judge following a discussion as to the limits of the jurisdiction of the court below as demonstrated by extracts from the transcript of the proceedings:

    Page 7 lines 23-26:

Her Honour: … the complaint in ground 1 – yes, so you withdraw reliance on ground 1.

Mr Mendelssohn: Yes

    Page 8 lines 22-29:

Her Honour: So I just can’t see where you would go in ground 2.

Mr Mendelssohn: Yes. The ground on which I particularly rely, your Honour, is ground 4, which is ---

Her Honour: Ground 4. Can I consider grounds 1 and 2 not relied upon?

Mr Mendelssohn: I would make that concession your Honour.

    Page 17 lines 24-28:

Her Honour: I don’t understand you to be pressing the complaints about the interpreter or the legal ---

Mr Mendelssohn: The inadequacy of the initial interpreter and – no, I’m not pressing that.

    Page 17 lines 44-47, page 18 lines 1-24:

Her Honour: And I think that the – is it fair to say that the applicant is confining her ground to ground 4?

Mr Mendelssohn: Essentially, your Honour, yes.

Her Honour: When you say “essentially”, is there anything you want to say about any of the others? Or can I understand that your complaint is encapsulated in your submission that the tribunal should have considered – in the course of considering whether there were compelling reasons for granting the visa, should have had regard to the difficulties that she would face in repatriation?

Mr Mendelssohn: That is correct, your Honour.

Her Honour: And you understand what I’ve put, that ---

Mr Mendelssohn: I understand what your Honour has put from the bench, yes.

Her Honour: Yes, okay. So if I simply say that if in my reasons where I’m, as I say – I understand the applicant to have confined and encapsulated their case to that complaint. Is that fair, Mr Mendelssohn?

Mr Mendelssohn: That is fair, your Honour.

Her Honour: Rather than looking at it sequentially through the grounds as they presently ---

Mr Mendelssohn: Yes. Yes, I consider that to be a fair summary, your Honour.

28    The Minister contends, and I accept, that:

(1)        the Proposed Grounds reflect grounds of the Amended Application to the FCC which were abandoned as follows: Ground 1, Ground 2 except to the extent it alleges that the applicant was not allowed “the opportunity to obtain legal advice”, Ground 3, Ground 6 and Ground 7, except to the extent it alleges that the applicant is “entitled to an appropriate refugee visa”, and

(2)        the Proposed Grounds include grounds not raised in the Amended Application to the FCC, namely, Ground 2 to the extent it alleges that the applicant was not allowed “the opportunity to obtain legal advice”, Ground 4 except to the extent it alleges “due and fair weight” was not given to certain evidence and Ground 7 to the extent it alleges that the applicant is “entitled to an appropriate refugee visa”. The applicant also did not raise before the court below the ground based on ss 33Z and 20 of the Federal Court Act 1976 (FCA) referred to at [21].

29    These submissions were not challenged by the applicant and no application for leave to rely on the abandoned and new grounds has been made. The applicant has not provided any reason why the new grounds were not advanced in the court below or how any of the factors mentioned by Madgwick J in NATJ at [166] apply in this case.

30    While latitude might be afforded to self-represented applicants, and often it is in migration cases, in this case the applicant was represented in the court below and the grounds (other than ground 4, effectively) were abandoned explicitly. The applicant is also represented in this Court, but the applicant’s written submissions do not address any basis on which the Court should grant leave to reargue grounds which have been abandoned in the court below or to pursue new grounds.

31    Paragraph 1 of the applicant’s written submissions asserts that Mr Mendelssohn’s affidavit establishes the reasons for the delay and notes that the Minister admits that he is not prejudiced by the delay. I have rejected this as an insufficient explanation at [25] above. The written submission also seeks an extension of time to appeal on the ground of “obscurity as to the Appellant’s need of a qualified interpreter in Korean and/or Mandarin language during the whole review and appeal process.” The question of the quality of the interpreter was raised in Ground 2 of the Amended Application to the FCC and explicitly abandoned; this somewhat obscure reference does not provide any sort of explanation for why the ground should be given leave to be agitated again on appeal. In any event the argument plainly has no merit, it is common for applicants who appear before the Tribunal and the Refugee Review Tribunal to have difficulty in understanding English: it is for that reason that interpreters are supplied so that they may participate in the hearing in a real and meaningful way and the applicant’s lack of proficiency in English alone would not be a meritorious argument. Further, when the Tribunal realised that the applicant was not being assisted appropriately by a Korean interpreter, it arranged immediately for a Mandarin speaking interpreter who was able to assist the applicant to participate in the hearing. In addition, the applicant had the assistance of a migration agent at the hearing at the Tribunal and extensive written submissions were made on her behalf to the Tribunal both before and after the hearing. The applicant had every opportunity to put all of her evidence and arguments before the Tribunal. She did not attend at the hearing in the court below. The ground was appropriately abandoned in the court below and the reference in the applicant’s written submissions to this Court in no way advances this application.

32    Ground 6 of the Proposed Grounds reflects ground 5 of the Amended Application to the FCC, and it asserts that the applicant met the criteria for the grant of a 457 visa. This is a pivotal issue in considering the merits of the proposed appeal if an extension of time were to be granted. This ground could not be made out because: (1) it was abandoned in the court below; (2) the applicant did not identify to this Court how the Tribunal and the primary judge’s construction of cl 3004 was in error; and (3) I perceive no error on my reading of the reasons of the Tribunal or the primary judge.

33    The result is that no matter how compelling the reasons may be to grant the applicant a 457 visa based on the applicant’s claims to fear persecution, the applicant is not entitled to the grant of a 457 visa because cl 3004(f) cannot be satisfied. The applicant did not have an approved sponsor (as would have been required at that time) on 4 October 2008, the last day on which she held a substantive visa. Each of paragraph (c)-(h) of cl 3004 must be satisfied as they are conjunctive. For the same reason the only ground which was pressed in the court below (essentially Ground 4 of the Amended Application to the FCC) must also fail.

34    Accordingly, even if a case could be made out on the other grounds set out in the draft notice of appeal that there was some procedural fault, it would be futile to grant the relief which would be most appropriately ordered by this Court: writs of certiorari and mandamus. This is because if the applicant cannot satisfy the statutory criteria for the grant of a 457 visa, the Tribunal, no matter how exemplary its procedures are, must come to the same conclusion.

35    Ground 7 of the Proposed Grounds alleges that the applicant is entitled to a 457 visa or to “an appropriate refugee visa”. The applicant seeks a declaration that the applicant is a “holder of a valid” 457 visa and that the applicant is a refugee within the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (Refugees Convention). The applicant also seeks injunctions requiring the Minister to provide a protection visa to the applicant and release her from Villawood Immigration Detention Centre. The applicant’s written submissions seek essentially the relief on the basis that the Court has power to grant it under ss 20 and 33Z of the FCA because Australia’s obligations to asylum seekers and refugees are not voluntary under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. No argument has been provided by the applicant in support of these contentions and the orders sought. However, the applicant would have no prospect of being successful either on the grounds proposed or in obtaining the relief sought.

36    For the reasons at [33]-[34], it does not appear that the applicant is entitled to a 457 visa.

37    The Minister’s written submissions indicate that it is open to the applicant to apply for a protection visa (Protection (Class XA) visas are prescribed under reg 2.12(1)(c)):

[40]    It is also important to note that there is no bar to the applicant making an application for a protection visa: Migration Act 1958 (Cth) (the Act), s 48 and Migration Regulations 1994 (Cth) (the Regulations), reg 2.12. She retains the opportunity to have the real substance of the claim she appears to be making (that is, that deportation to China would result in harm to her) considered on its merits. This significantly reduces the scope of what is at stake for the applicant in relation to the present application and any appeal.

38    The applicant’s written submission filed on 12 November 2013 also indicates that it is open to her to make such an application and her representative advised the Court that she had been told that this course was open to her but she declined to take it. I note that the primary judge also raised this matter, and Mr Mendelssohn indicated that she may not be able to because she may have already made an application for a protection visa: page 15, lines 21-47 and page 16, lines 1-11 of the Quan transcript. Mr Mendelssohn did not appear to be acting on instructions (as his client was not in court) and he acknowledged that he had not acted for the applicant previously. Accordingly I prefer the submissions of the Minister and the applicant’s representative in these proceedings.

39    The Minister contends that the Court does not have power to make the declaration that she is entitled to a protection visa or that she is a refugee, but it is unnecessary for me to address that submission as to the Court’s power since as a discretionary matter the relief should be denied; it is appropriate for the applicant to pursue the processes prescribed by parliament under the Migration Act as the domestic law by virtue of which Australia observes the obligations it has accepted under the Refugees Convention to provide protection to refugees. As a matter of public policy, it would be inappropriate for the applicant to do an “end run” around the statutory scheme in the manner proposed by the application. The Court encouraged the applicant to make a protection visa application if that course is still available to her.

40    If, however, it emerges that Mr Mendelssohn is right, then the applicant may still have avenues of recourse to the personal discretion of the Minister under s 48B of the Migration Act to permit the applicant to reapply for a protection visa. Alternatively, there may be grounds for the Minister to consider making a decision in substitution for the Tribunal’s decision in relation to the 457 visa under s 351 of the Migration Act. Given that either course involves the exercise of a personal discretion of the Minister in the public interest, I recognise that that may be a difficult path. It appears to have been accepted by the Tribunal that if the applicant had held a substantive visa more proximately to the time she applied for the 457 visa, cl 3004(f)(i) may have been satisfied so that the applicant’s claims to fear persecution would have had relevance under cl 3004(c) and cl 3004(d). This may be a basis for a sympathetic consideration, although the Tribunal had some concerns about the long period of the applicant’s “unlawfulness” (that is, being an “unlawful non-citizen”) in combination with other evidence of her circumstances: see [35] of the Tribunal’s decision record.

41    Section 33Z of the FCA relates to representative actions and the applicant has identified no group and taken none of the steps required to establish such an action, nor has she identified any domestic law pursuant to which such an action might be taken in relation to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This submission must therefore be rejected.

42    The Minister submits, and I accept, that there is no basis for the Court to order that the applicant be released from the Villawood Immigration Detention Centre in the current circumstances. Section 189(1) of the Migration Act provides that an unlawful non-citizen must be detained. The applicant is an unlawful non-citizen because she is in Australia, is a non-citizen and does not hold a visa that is in effect: ss 13 and 14 of the Migration Act.

43    For these reasons I dismiss the application and order that the applicant pay the costs of the first respondent as agreed or assessed. I order that the title of the first respondent be amended to “Minister for Immigration and Border Protection”.

Associate:

Dated:    25 November 2013