Cha v Minister for Immigration

[2008] FMCA 1620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHA & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1620

MIGRATION – Visa – Migration Review Tribunal – certiorari and mandamus granted in respect of First Applicant – application dismissed in respect of Second and Third Applicant – litigation guardian – costs – no appearance by applicants – where second and third applicants had no standing to seek a review of the delegate’s decision.

Migration Act 1958 (Cth), ss. 338, 347
Federal Magistrates Court Rules 2001, r13.03A

First Applicant: HAE YEUN CHA

Second Applicant: DAE BEOM CHA

Third Applicant: YOON BEOM CHA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2571 of 2008

Judgment of: Scarlett FM

Hearing date: 19 November 2008

Date of Last Submission: 19 November 2008

Delivered at: Sydney

Delivered on: 19 November 2008

REPRESENTATION

The Applicants: No Appearance

Solicitors for the Respondents: Clayton Utz

ORDERS

By Consent as between the First Applicant and the First Respondent:

1. The Application made on 7 October 2008 be granted in relation to the First Applicant.

2. A writ of certiorari issue quashing the decision of the Second Applicant made on 15 August 2008 and handed down on 18 August 2008 insofar as it affects the First Applicant.

3. A writ of mandamus issue requiring the Second Respondent to determine the application made on 17 June 2008 in relation to the First Applicant according to law.

4. The First Respondent is to pay the First Applicant’s costs (if any).

In respect of the Second and Third Applicants:

1. The application is dismissed due to the non-attendance of the Applicants under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

2. The Second Applicant and the First Applicant in her capacity as litigation guardian of the Third Applicant are to pay the First Respondent’s costs fixed in the sum of $3800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2571 of 2008

HAE YEUN CHA

First Applicant

DAE BEOM KIM

Second Applicant

YOON BEOM KIM

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. These proceedings are somewhat unusual. They involve an application by three applicants for a review of the decision of the Migration Review Tribunal signed on 15 August 2008 and handed down on 18 August 2008, finding that the Tribunal does not have jurisdiction in this matter.

2. The applicants seek a review of that decision and seek orders in the nature of certiorari and mandamus.   The application was filed on 7 October 2008 and came before the Court on its first Court date, which was 27 October 2008.  On that occasion I made directions for hearing by consent and listed the matter for final hearing today.  I also made an order that the first applicant was to be the litigation guardian of the third applicant, who is an infant. 

3. What has since happened prior to the hearing is that the Minister has decided to consent to the orders sought in relation to the application by the first applicant only.  The Minister has decided not to consent to the orders sought in relation to the second and third applicants. 

4. It is noteworthy that one reason that the Tribunal found that it had no jurisdiction in relation to the second and third named review applicants was that they were not subject to the primary decision, therefore, subsection 347(2)(a) of the Migration Act applies.

5. That subsection provides that an application for review may only be made by, if the MRT decision is covered by subsections 338(2), (3), (3a), (4) or (7a), the non-citizen who is the subject of that decision. 

6. Only the first applicant applied for a visa originally. The second and third applicants did not apply. Consequently, when the delegate refused the application it was only the first applicant who had standing to apply to the Migration Review Tribunal to review that decision.  The second and third applicant could not have any ground to ask the Tribunal to review a decision of the delegate to which they were not a party.

7. In any event, none of the applicants has attended Court today. The Minister still intends to consent to the orders sought by the first applicant, but does not consent and, indeed, could hardly consent to the orders sought by the second and third applicant who have no standing, or who had no standing before the Tribunal to review the delegate's decision.

8. I propose to make orders by consent in respect of the first applicant, and I propose to dismiss the application under the provisions of r.13.03A(c) in respect of the second and third applicants due to their non attendance at the hearing. I will make an order for costs against the second applicant and against the first applicant as the litigation guardian of the third applicant. I will order a transcript of the reasons for this decision. I will remove the application from the list of cases awaiting finalisation.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  3 December 2008