Hu v Minister for Immigration - [2007] FMCA 1370

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1370

MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding that it had no jurisdiction as the delegate’s decision had been reviewed previously – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.412, 476, 500
Freedom of Information Act 1982
Federal Magistrates Court Rules 2001 (Cth)

Hu & Ors v Minister for Immigration [2005] FMCA 1030
Hu & Ors v Minister for Immigration [2006] FCA 299
Hu & Ors v v Minister for Immigration [2006] HCATrans 564

First Applicant:

JUNG SUNG HU

Second Applicant:

SINAE HO

Third Applicant:

EUNICE HU

Forth Applicant:

CHAN HU

Fifth Applicant:

WON HU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1734 of 2007

Judgment of:

Driver FM

Hearing date:

13 August 2007

Delivered at:

Sydney

Delivered on:

13 August 2007

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Mr O Young
Blake Dawson Waldron

INTERLOCUTORY ORDERS

To the extent that an extension of time is required for the application filed 1 June 2007, the applicant is granted an extension of time until that date.
The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1734 of 2007

JUNG SUNG HU

First Applicant

SINAE HO

Second Applicant

EUNICE HU

Third Applicant

CHAN HU

Fourth Applicant

WON HU

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application seeking review of a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on 24 April 2007 and notified to the first applicant (“the applicant”) by letter of the same date. The Tribunal found that it did not have any jurisdiction in the review before it because the relevant decision of the delegate had previously been reviewed by the Tribunal.
The show cause application filed on 1 June 2007 asserted actual notification of the Tribunal decision on 17 May 2007. On that basis I find that the application was filed within time.
Despite initial uncertainty, the applicant continues to rely upon that application as well as upon an amended application filed on 27 July 2007. The original application asserts jurisdictional error both in relation to a decision of a delegate of the Minister, which preceded the first Tribunal decision, and in relation to the first Tribunal decision itself. That application makes no direct attack on the decision of the Tribunal the subject of this proceeding.
The amended application purports to raise new concerns about the decision of the delegate. Again there appears to be no attack upon the decision of the Tribunal the subject of…

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: [2007] FMCA 1370
Decision Date: 13 August 2007

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Jung Sung Hu and others brought a case against the Minister for Immigration and the Migration Review Tribunal. They sought a review of the Tribunal's decision, which had found it lacked jurisdiction to review a delegate's decision that had already been considered by the Tribunal. The applicants filed a show cause application, claiming the Tribunal's decision was flawed, but the Federal Magistrate dismissed the application, finding no arguable case of jurisdictional error.

The legal issues the court needed to decide included whether the Tribunal correctly found it had no jurisdiction to review the delegate's decision that had already been considered and whether the applicants had demonstrated an arguable case of jurisdictional error. The court also needed to determine whether the applicants' claims about the delegate's decision and the Tribunal's decision had any legal significance.

The Federal Magistrate found that the Tribunal was correct in concluding it had no jurisdiction to review the delegate's decision, which had already been considered and found not to be affected by jurisdictional error by higher courts. The court noted that it lacked jurisdiction to review the delegate's decision or the Tribunal's decision under the Migration Act 1958. The applicants' concerns about the delegate's decision were beyond the scope of this proceeding and did not constitute an arguable case of jurisdictional error in the Tribunal's decision. The court dismissed the application and ordered the first applicant to pay the Minister's costs.

The court's reasoning was based on the legal principles that the Tribunal had discharged its functions under the Migration Act when it previously reviewed the delegate's decision, and the Federal Magistrates Court lacked jurisdiction to review primary decisions. The court found that the applicants had not demonstrated an arguable case of jurisdictional error in the Tribunal's decision. The applicants' concerns about the delegate's decision were outside the scope of this proceeding, and the court could not provide relief on those grounds. The Federal Magistrate dismissed the application and ordered the first applicant to pay the Minister's costs.

Orders