Jung & Ors v Minister for Immigration & Anor - [2006] FMCA 1758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUNG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1758

MIGRATION – Review of Migration Review Tribunal decision – Tribunal found it lacked jurisdiction – refusal of a temporary business visa – dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.338, 348, 359, 359C, 360
Migration Regulations

First Applicant:

KYONG HO JUNG

Second Applicant:

YONG KYUN JUNG

Third Applicant:

YU MI JUNG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG2522 of 2006

Judgment of:

Driver FM

Hearing date:

27 November 2006

Delivered at:

Sydney

Delivered on:

27 November 2006

REPRESENTATION

The First Applicant appeared in person by telephone

Solicitors for the Respondents:

Ms G Broderick
Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 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, including any reserved costs, fixed in the sum of $2,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2522 of 2006

KYONG HO JUNG

First Applicant

YONG KYUN JUNG

Second Applicant

YU MI JUNG

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on 4 August 2006 and was notified to the applicant by letter dated 8 August 2006. The applicants’ show cause application was filed on 7 September 2006. In that application they assert notification of the Tribunal decision on 20 August 2006. On that basis I find that the application was filed within time.
The Tribunal found that it lacked jurisdiction to review the review application before it. The applicants had sought review of a decision of a delegate of the Minister to refuse to grant them temporary business entry visas. The Tribunal found that, pursuant to s.338 of the Migration Act 1958 (Cth) (“the Migration Act”) and regulation 4.024 of the Migration Regulations (Cth) (“the Migration Regulations), the decision before it was not a Migration Review Tribunal reviewable decision. The Tribunal found that at the relevant time the applicants were not sponsored by an approved sponsor and neither was there any outstanding application to review a decision to refuse to approve a sponsor.
The show cause application sets out three grounds. The first ground is that the purported decision of the Tribunal is null and void by jurisdictional error because the Tribunal failed to set aside the delegate’s reason. The second ground is an asserted denial of natural justice by failing to invite the applicants to a hearing. The third ground is an assertion of a lack of evidence to indicate that the Tribunal wrote to the applicants inviting submissions on “this issue”.
This matter first came before me on 5 October 2006. At that time the first applicant attended in person with the assistance of a Korean interpreter. I appointed the first applicant the litigation guardian for the second and third applicants, who are children. It was not apparent to me at that time whether the show cause application disclosed an arguable case. I directed that there be a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. I also made orders for the filing of additional material. The only additional document filed is the court book filed on behalf of the Minister on 25 October 2006.
The court book was forwarded by the Minister’s solicitors to the applicants at their address for service under cover of a letter dated 26 October 2006. That letter is exhibit R1. The first applicant denied receipt of that letter. The first applicant also failed to attend today’s show cause hearing. However, the court was successful in contacting him by telephone. He explained that he had a cold and that he had forgotten the hearing. He also initially stated that he was awaiting advice or assistance from a Mr Soon Ha Kim, although he later clarified this to identify Mr Kim as merely the person who had been assisting him before the Tribunal. I gave the first applicant the opportunity to make oral submissions by telephone. He was, however, unable to expand meaningfully upon the grounds set out in the application.
There is no substance to the first and third grounds of review. There was no obligation on the Tribunal to set aside the decision of the delegate. Therefore, there could be no jurisdictional error arising out of the simple failure to set aside that decision.
As to the third ground of review, the relevant issue was whether the Tribunal had any jurisdiction. The court book discloses that the applicants were invited to comment on that issue by letter dated 6 January 2006 (court book, pages 55 and 56).
The remaining ground of review concerns the failure by the Tribunal to invite the applicants to a hearing. The fact of non-invitation is established, but Ms Broderick, on behalf of the Minister, submits that the general obligation to invite applicants to a hearing pursuant to s.360 of the Migration Act did not apply in this case. That is on the basis that the general obligation on the Tribunal to review decisions under s.348(1) of the Act only extends to Migration Review Tribunal reviewable decisions. The Tribunal’s decision in this case was that the decision before it was not a Migration Review Tribunal reviewable decision. On the basis of the available material, that decision by the Tribunal appears to have been correct. I conclude that the application in ground two fails to disclose an arguable case.
Even if that conclusion were wrong, and there was some obligation on the Tribunal to review the delegate’s decision, a hearing would not have been required. That is because the letter dated 6 June 2006 would then have the character of an invitation to provide additional information pursuant to s.359 of the Migration Act. The applicants did not respond to that letter within the time requested or at all. Accordingly, even if there were otherwise an obligation to invite the applicants to a hearing, their failure to respond would have enlivened the operation of s.359C(1) of the Migration Act for the purposes of s.360. Further, there is no evidence that the applicants have overcome the obstacle of the absence of an approved sponsor. In the absence of an approved sponsor they would not qualify for the class of visa they sought, and further review by the Tribunal would be futile.
I conclude that the applicants have failed to disclose an arguable case of jurisdictional error. I therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
Costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,100. Scale costs in the present circumstances would be $2,500. The Minister properly seeks a lesser amount. The first applicant did not wish to be heard on costs. I will order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,100.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 December 2006