FEDERAL COURT OF AUSTRALIA

SZWCA v Minister for Immigration and Border Protection (No 2) [2015] FCA 1395

Citation:	SZWCA v Minister for Immigration and Border Protection (No 2) [2015] FCA 1395	
		
Parties:	SZWCA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and FEDERAL CIRCUIT COURT OF AUSTRALIA	
		
File number(s):	NSD 1036 of 2015	
		
Judge(s):	GRIFFITHS J	
		
Date of judgment:	4 December 2015	
		
Catchwords:	MIGRATION – application for review of a decision of the Federal Circuit Court of Australia concerning the applicant’s application for an extension of time	
		
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a)
Federal Court Rules 2011 (Cth) r 30.21(1)(a)(i) 
Judiciary Act 1903 (Cth) s 39B 
Migration Act 1958 (Cth) s 91P(2) 	
		
Cases cited:	 SZWCA v Minister for Immigration & Anor [2015] FCCA 1249
SZWCA v Minister for Immigration and Border Protection (No 1) [2015] FCA 1388	
		
Date of hearing:	4 November 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords 	
		
Number of paragraphs:	22	
		
Counsel for the Applicant:	The applicant did not appear	
		
Solicitor for the Respondent:	Mr A Markus, Australian Government Solicitor	
			
Counsel for the Second Respondent:	The second respondent did not appear	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1036 of 2015	

BETWEEN:	SZWCA
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA
Second Respondent	

JUDGE:	GRIFFITHS J	
DATE OF ORDER:	4 December 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The Federal Circuit Court of Australia be joined as a party to the proceeding.
2.	The originating application for relief under s 39B of the Judiciary Act 1903 (Cth) be dismissed.  
3.	The applicant pay the first respondent’s costs as agreed or assessed.  
4.	Under s 37AF of the Federal Court of Australia Act 1976 (Cth) the identity of the applicant which is referred to in the Application Papers and also in [6] of the first respondent’s outline of submissions dated 27 April 2015 (sic) is not to be published.  This order is made on the ground in s 37AG(1)(a) of that Act.  

NOTE: The Registrar is requested to forward a copy of these reasons for judgment to the Law Society of New South Wales.  

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

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1036 of 2015	

BETWEEN:	SZWCA
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA
Second Respondent	

JUDGE:	GRIFFITHS J	
DATE:	4 December 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
1		This proceeding has some unusual aspects.  On 2 September 2015 the applicant filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) (the originating application).  It was stated on the originating application that the applicant was represented by a solicitor, Jagath Maddumage Don, whose firm was said to be Skylane Worldwide Enterprise Pty Ltd and that the address for service was Suite 401, Level 4, 80 Mount Street, North Sydney, New South Wales 2060.  The originating application was accompanied by an affidavit sworn by the applicant on 14 August 2015.  The affidavit was witnessed by Mr Don.  The affidavit sets out a series of claims as to why the Federal Circuit Court had erred in allegedly dismissing the applicant’s application “summarily without proper consideration whilst it is obvious that RRT has made a mistake and improperly considered my case in many different aspects”.  
2		A second affidavit sworn by the applicant on 27 August 2015 was also filed.  In it, the applicant claimed that the “Federal Circuit Court has dismissed my application summarily without proper consideration breaching procedural fairness and natural justice”.  The signature of the deponent is unclear and, underneath that signature, there is a further signature with the words “Power of Attorney Holder” written below the signature.  No explanation is provided as to how a person who purports to hold a Power of Attorney can swear an affidavit on behalf of another person.  The identity of the person who purports to hold the Power of Attorney is uncertain. It is also uncertain whether it is the applicant’s own signature.  The second affidavit appears to have been witnessed by Mr Don, however, details of the witness’s name and qualification were not provided.  
3		On 29 September 2015 the matter came before me for directions.  There was no appearance for the applicant.  Mr Marcus appeared for the Minister.  The Court made the following orders on that day:  
1.	The applicant file and serve an amended application, joining the Federal Circuit Court of Australia as a respondent, on or before 13 October 2015.
2.	The applicant file and serve any further affidavit evidence on or before 13 October 2015.
3.	The respondents file and serve an Application book and any affidavit evidence on or before 3 November 2015.
4.	The application be listed for hearing at 10.15 am on Friday 4 December 2015.
5.	No later than ten (10) business days before the hearing date the applicant file and serve a written outline of submissions upon which she seeks to rely in support of the application.
6.	The respondents file and serve a written outline of submissions not later than five (5) business days before the hearing date.
7.	Outlines of submissions are not to exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout.
8.	The Australian Government Solicitor is to forward a copy of these orders to the applicant directly at Villawood Detention Centre and also care of Mr Don at Suite 401, Level 4, 80 Mount St, North Sydney NSW 2060.
9.	Liberty to apply on the giving of 48 hours’ notice. 

4		In accordance with order 8, on 30 September 2015 the Australian Government Solicitor wrote to both the applicant’s solicitor at the address for service given on the originating application and also to the applicant personally at Villawood Immigration Detention Centre.  Each was sent a copy of the orders made on 29 September 2015 and was informed that the matter was listed for hearing at 10.15 am on 4 December 2015.  On 26 November 2015, the Registry also wrote to the applicant’s solicitor and to the applicant personally and informed them that the applicant was in default of filing a written outline of submissions and that the hearing would take place today.  
Background to the originating application
5		The applicant came to Australia on 4 July 2008 carrying a passport issued by the People’s Republic of China.  In September 2012 she was detained as an unlawful non-citizen.  An application made by her for a subclass 457 visa was refused.  On 17 December 2013 she applied for a protection visa claiming that she had been born in the Democratic People’s Republic of Korea (North Korea) and that her parents had moved their family to China when she was young.  She claimed to fear that she would be returned to North Korea if she was sent to China and that she would be mistreated there because it is illegal to leave North Korea without permission.  She also made other claims.  The Minister’s delegate refused the protection visa application.  The applicant applied to the Refugee Review Tribunal (the Tribunal).  The Tribunal made a decision on 24 March 2014 which set aside the delegate’s decision and substituted a decision that the applicant’s protection visa was not valid and could not be considered.  This was because the applicant was a North Korean national and, under the laws of the Republic of Korea (South Korea), she was also a national of that country.  Consequently, the Tribunal found that her application for a protection visa was not valid under s 91P(2) of the Migration Act 1958 (Cth) (the Act).  
6		As noted above, on 11 February 2015 (i.e. almost eleven months after the Tribunal’s decision) the applicant commenced proceedings in the FCCA seeking a judicial review of that decision.  The applicant sought an extension of time under s 477 of the Act because her judicial review application was well out of time.  
7		The applicant’s application for an extension of time was listed for hearing before Judge Smith in the Federal Court of Australia (the FCCA) on 6 May 2015.  It might be noted that although the applicant’s judicial review application had been filed on her behalf by a solicitor called Norbert Kelvin from Norbert Kelvin Solicitors (and whose address for service was given as Suite 401, Level 4, 80 Mount Street, North Sydney), when the matter came on for hearing before Judge Smith, the applicant was represented by the law firm Goldsmiths Lawyers, whose address was Level 8, Bligh Chambers, 25 Bligh Street, Sydney.  The principal of that firm was said to be Mr Barrie Goldsmith.  The applicant was represented at the hearing by a solicitor employed with Goldsmiths Lawyers, namely Ms Aimee McIntyre.  
8		The applicant’s application for an extension of time was also supported by an affidavit sworn by a Mr Edward Kang on 11 February 2015.  Mr Kang described himself as a businessman who had known the applicant for many years, initially in a professional capacity but later as a personal friend.  Mr Kang gave his address as Suite 401, Level 4, 80 Mount Street, North Sydney, i.e. the same address as given by both Norbert Kelvin Solicitors and Mr Don.  Mr Kang’s affidavit was witnessed by the applicant’s then solicitor Norbert Kelvin.  
9		At the hearing before Judge Smith on 6 May 2015, Ms McIntyre sought to have the hearing of the application for an extension of time adjourned.  The application was refused and his Honour gave ex tempore reasons which are included in the Appeal Book in the proceeding.  In those reasons, the primary judge expressed his concern regarding several aspects of the matter, including:
(a)	the applicant’s non-compliance with any of the FCCA’s orders made on 10 March 2015 and that, although the applicant was represented by Norbert Kelvin, there was no appearance for the applicant on 10 March 2015;
(b)	the cross-examination of Ms McIntyre revealed that her principal, Barrie Goldsmith, had been provided with some material in relation to the applicant’s case from Edward Kang and that Goldsmiths Lawyers had a relationship with Mr Kang.  Ms McIntyre gave evidence that Mr Kang was not a registered migration agent;
(c)	there was no evidence that Mr Kang had any authority to act for the applicant, however, his involvement went back to the applicant’s proceeding before the Tribunal;
(d)	it appeared that Mr Barrie Goldsmith had had no contact at all with the applicant and there was no indication whether he considered that there might be further information or grounds to support the application for an extension of time;
(e)	Mr Kelvin had never appeared in that Court despite being the solicitor on the record for some time and no explanation had been provided by him for non-compliance with the Court’s orders; and
(f)	the indications were that Mr Kelvin was not in charge of running the case and, without making any finding, it appeared to the primary judge that Mr Kang “is in fact the true actor in this matter”.  
10		In the light of those concerns, the primary judge subsequently referred the relevant papers to both the Office of Migration Agents Registration Authority as well as the Law Society of New South Wales in respect of Mr Kang and Mr Kelvin respectively.  
11		Having refused the application for an adjournment, his Honour proceeded on 6 May 2015 to hear the application for an extension of time.  Ms McIntyre told the FCCA that she had no instructions to act for the applicant in the event that the adjournment application was unsuccessful.  Although she had no further professional involvement in the matter, Ms McIntyre remained in the Court room while Mr Marcus presented the Minister’s submissions as to why an extension of time should not be granted.  
12		The primary judge reserved his judgment on the extension of time.  On 14 May 2015 he delivered his judgment and ordered that the application for an extension of time be dismissed.  He gave detailed reasons for doing so (see SZWCA v Minister for Immigration & Anor [2015] FCCA 1249).  It is unnecessary to describe those reasons.  
The Federal Court proceeding
13		The proceeding in this Court has been described above.  It is in the nature of an application for judicial review under s 39B of the Judiciary Act 1903 (Cth).  The so-called grounds of review are set out in two affidavits sworn by the applicant which are referred to in [1]-[2] above.  The present proceeding was commenced on 2 September 2015, which is more than three months after the FCCA made orders and gave reasons.  The delay is unexplained.  
14		The applicant failed to comply with the relevant orders made on 29 September 2015 which are set out in [3] above.  
15		When the matter was called for hearing, the applicant was present.  There was no appearance by Mr Don.  The applicant was assisted by an interpreter.  Ms Tannous from MacKellars Lawyers announced her appearance for the applicant.  She said her instructions were limited to seeking to have the hearing adjourned for four weeks.  Ms Tannous said she had no instructions to act for the applicant in the substantive hearing.  After hearing argument, the adjournment application was refused.  The reasons are set out in SZWCA v Minister for Immigration and Border Protection (No 1) [2015] FCA 1388. 
16		The hearing proceeded with the applicant appearing for herself.  When the applicant was asked if she wanted to make any submissions, she asked for a brief adjournment to consult someone as to whether she should rely upon a written document which she said contained submissions on her behalf.  That adjournment was granted.  On resumption, the applicant handed to the Court a fifteen page document entitled “Submissions on behalf of [the applicant]”.  It was evident that these were the submissions used by the applicant before the Tribunal.  The content of the submissions confirmed that fact.  They all addressed the issue of the merits of her application to the Tribunal to review the delegate’s refusal to grant her a protection visa.  There was nothing in the submissions which dealt with the judicial review application currently before the Court in respect of the FCCA’s refusal to extend time.  There was also nothing in the written submissions which identified any jurisdictional error or indeed any error at all in the FCCA’s decision.  That is perhaps not surprising since the submissions were prepared for another much earlier proceeding before the Tribunal and have nothing to do with the proceeding in the FCCA or this Court.  
17		When the applicant was invited to make whatever oral submissions she wished to make in respect of her application, she indicated that all her submissions were contained in the written document to which reference has been made. 
18		Mr Markus, who appeared for the Minister, was content to rely on the written outline of submissions filed on the Minister’s behalf. 
19		Having considered all the material filed on behalf of the applicant and put by her orally today, I am satisfied that no jurisdictional error has been established on the part of the primary judge.  I accept the Minister’s submission that none of the documents or submission made by or on behalf of the applicant meaningfully identifies any jurisdictional error.  The claim that the proceeding was “summarily dismissed” is factually incorrect.  The applicant’s application for an extension of time was considered and dismissed by the FCCA after a substantive hearing.  The applicant has not established that she was denied procedural fairness or natural justice, nor has she made good any of her other claims of jurisdictional error.  It is evident from the material before the Court that the applicant’s central grievance is with the merits of the FCCA’s decision not to extend time.  That dissatisfaction is insufficient by itself without establishing some jurisdictional error.  It cannot be said that the primary judge’s decision lacks “an evident or intelligible justification”.  On the contrary, I consider that the primary judge’s reasons amply explain his decision not to extend time.  
20		As is evident from the matters set out above, Judge Smith was concerned about the involvement of Mr Kang and the role played by the applicant’s original solicitor, Mr Kelvin.  
21		It is curious that the applicant’s current solicitor gives the same address for service as that which was provided by Mr Kelvin and was also identified in Mr Kang’s affidavit dated 11 February 2015 in the FCCA as his address.  Mr Marcus contended that the solicitor holds a restricted practising certificate and is employed by a property development company.  It may well be that there is some acceptable explanation for these matters, as well as for the anomalies on the face of the applicant’s second affidavit as described in [2] above.  Having regard to the referrals which were made by the primary judge which are described in [10] above, I consider that it is appropriate that a copy of these reasons for judgment also be sent to the Law Society of New South Wales.  
Conclusion
22		For these reasons, the application must be dismissed and the applicant ordered to pay the respondent’s costs as agreed or assessed.  It is also appropriate to make a non-publication order in respect of the applicant’s identity.  Orders will be made accordingly.  
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.	

Associate: 

Dated:	4 December 2015