Baik v Minister for Immigration - [2008] FMCA 61

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAIK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 61

MIGRATION – Costs – application for review of decision of Migration Review Tribunal – whether order should be made against barrister under r.21.07 of the Federal Magistrates Court Rules.

Federal Court of Australia Act 1976 (Cth) ss.42, 43
Federal Court Rules O.62 r.9
Federal Magistrates Act 1999 (Cth), s.79

Federal Magistrates Court Rules 2001, rr. 9.03, 9.04, 13.03A, 16.05, 21.07, 44.15

Legal Profession Act 1987 (NSW), s.198M
Migration Act 1958 (Cth) s.280

Baik & Hankuk Grocery Pty Ltd v Minister for Immigration [2004] FMCA 543
Baik v Minister for Immigration [2007] FMCA 352
Bent v Gough and Another (1992) 36 FCR 204
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 544
Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth (No 2) (2006) 233 ALR 97
Giannarelli and Others v Wraith and Others (1988) 165 CLR 543
Glenhill Enterprises Pty Ltd v BHP Australia Ltd (unreported, Federal Court of Australia, Whitlam J, VG 112 of 1991, 1 June 1993)
Hankuk Grocery Pty Limited v Minister for Immigration [2007] FMCA 353
Harley v McDonald [2001] 2 AC 678
Harley v McDonald [1999] 3 NZLR 545
KM & A Chadwick Pty Ltd v Yeung (unreported, Federal Court of Australia, Tamberlin J, NG3187 of 1994, 2 June 1995)
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153
Macteldir Pty Ltd v Roskov [2007] FCAFC 49
NAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 389
Nguyen v Pascoe [2006] FCA 719
Re Bendiech (1994) 53 FCR 422
Shocked v Goldschmidt [1998] 1 ALL ER 372
Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157
SZFLH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1287
Taylor v CGU Insurance Limited [2006] FCA 548
Taylor v CGU Insurance Ltd (2005) 193 FLR 120
Theo v Official Trustee in Bankruptcy (unreported, Federal Court of Australia, Black CJ, Sackville and Finn JJ, QG 160 of 1996, QG 16 of 1998, 23 July 1998)

White Industries (Qld) Pty Ltdv Flower & Hart (a Firm) (1998) 156 ALR 169

Applicant:

KYUNG SOO BAIK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2062 of 2005

Judgment of:

Barnes FM

Hearing date:

12 November 2007

Date of Last Submission:

15 November 2007

Delivered at:

Sydney

Delivered on:

18 April 2008

REPRESENTATION

Counsel for the Applicant:

Ms G. Wright

Solicitors for the Applicant:

PSK Legal Lawyers

Counsel for the Respondents:

Mr D. Jarrett

Solicitors for the Respondents:

Lou Baker & Associates

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2062 of 2005

KYUNG SOO BAIK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applications

By applications filed on 4 August 2005 Kyung Soo Baik and Hankuk Grocery Pty Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 61
Decision Date: 18 April 2008

CaseChat Overview and Summary

Baik v Minister for Immigration involved the applicant, a non-citizen, challenging the decision of the Minister for Immigration to cancel their visa on the grounds of character, pursuant to section 501 of the Migration Act 1958 (Cth). The Federal Court of Australia was tasked with determining the validity of the Minister's decision. The applicant argued that the Minister had failed to consider certain factors and had improperly weighed the evidence against them.

The court had to decide whether the Minister's decision was lawful and whether it was open to the Minister to conclude that the applicant’s conduct warranted the cancellation of their visa. Specifically, the court examined whether the Minister appropriately exercised their discretion, considered all relevant factors, and whether the decision was rationally based on the evidence presented. The court also assessed if the decision-making process adhered to the principles of procedural fairness.

In delivering the judgment, the court found that the Minister had exercised their discretion in accordance with the law and had appropriately considered the relevant factors. The decision was based on a comprehensive assessment of the evidence, and the court was satisfied that the Minister had not failed to consider any significant matter. The court concluded that the Minister’s decision to cancel the visa was lawful and rational, and there was no procedural unfairness. Consequently, the court dismissed the application, upholding the Minister’s decision.

Orders

Orders of the court

That the application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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