Byun v Minister for Immigration - [2006] FMCA 639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BYUN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 639

MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application as failing to disclose an arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.347, 494B, 494C

Chung v Minister for Immigration & Anor [2006] FMCA 624
Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238
SZBMF v Minister for Immigration [2005] FMCA 925
SZCTH v Minister for Immigration (No 2) [2004] FMCA 284
SZIOU v Minister for Immigration [2006] FMCA 602

First Applicant:

DAE WON BYUN

Second Applicant:

YOUNG OCK KIM

Third Applicant:

JUN HYEONG BYUN

Fourth Applicant:

JAE HYEONG BYUN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG3835 of 2005

Judgment of:

Driver FM

Hearing date:

1 May 2006

Delivered at:

Sydney

Delivered on:

1 May 2006

REPRESENTATION

The First Applicant appeared in person and on behalf of the Second, Third and Fourth Applicants

Solicitors for the Respondents:

Ms S Hanstein
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(b) of Part 2 to Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3835 of 2005

DAE WON BYUN

First Applicant

YOUNG OCK KIM

Second Applicant

JUN HYEONG BYUN

Third Applicant

JAE HYEONG BYUN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for an order to show cause why relief should not be granted in relation to a decision of the Migration Review Tribunal (“the MRT”). The application was filed on 23 December 2005 and asserts notification of the MRT decision on 22 November 2005. No issue was raised concerning the time limit for filing the application in this Court.
The MRT found that the application for review before it was ineligible because it was not made to the MRT within the time period prescribed under s.347 of the Migration Act 1958 (Cth) (“the Migration Act”). Relevantly the presiding member says on page 31 of the court book:
The Tribunal finds that the review applicant was required to give his application for review to the Tribunal within 21 calendar days after the day when the delegate notified him of the decision. The last day within the prescribed period that the review applicant could have made application for review was 24 August 2005. The review applicant did not give the application for review to the Tribunal until 30 August 2005.
It followed that the application was received six days late.
The application before the Court and an affidavit filed the same day supporting it assert that the applicants…

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.

Keep reading for free

Create a free CaseChat account to read Byun v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FMCA 639
Decision Date: 1 May 2006

CaseChat Overview and Summary

This case involves an application by Dae Won Byun and others seeking judicial review of a decision by the Migration Review Tribunal (MRT). The applicants, who are immigrants, challenge the MRT's decision that their application for review was ineligible because it was not submitted within the prescribed timeframe under the Migration Act. The Federal Magistrates Court was tasked with determining whether the applicants had made out a case warranting further judicial scrutiny.

The primary legal issue before the court was whether the applicants could establish that their application for review was eligible for consideration, despite being submitted late. This hinged on whether the MRT correctly applied the statutory time limits for lodging a review application and whether there were any grounds for extending the time under the Act. The applicants argued that they had not received the MRT's notification in time due to mail delivery issues, which they claimed justified an extension of time.

The court found that the applicants had not demonstrated an arguable case for review. It concluded that the Minister for Immigration had complied with the statutory requirements for notifying the applicants of their rights to review. The court further noted that the MRT correctly applied the statutory provisions governing the timeliness of review applications. The applicants' arguments regarding mail delivery issues did not alter the legal outcome, as the court found that the statutory presumption of receipt applied and the applicants' application was indeed late. The court highlighted that while it was sympathetic to the applicants' situation, it had no jurisdiction to extend the statutory time limits for review applications.

Consequently, the application was dismissed. The court ordered the applicants to pay the Minister's costs associated with the application, in accordance with the Federal Magistrates Court Rules. This decision underscores the strict adherence to statutory timelines in immigration review processes and the limited scope for tribunals to extend such deadlines.

Orders