Kim and Ors v Minister for Home Affairs and Anor (No.2)

[2018] FCCA 2685

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2018] FCCA 2685

Catchwords:
MIGRATION – Application in a case for reinstatement – no utility in setting aside the order made by the Court – application in a case dismissed. 

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Migration Act 1958 (Cth), ss.338, 347

Migration Regulations 1994 (Cth), reg.4.13

First Applicant: HYUNG WAN KIM

Second Applicant: HYUN KYUNG KIM

Third Applicant: JIYONG KIM

Fourth Applicant: JIHWAN KIM

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 32 of 2018

Judgment of: Judge Street

Hearing date: 19 July 2018

Date of Last Submission: 19 July 2018

Delivered at: Sydney

Delivered on: 19 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr L Myers
Legal Exchange

Solicitors for the Respondents: Mr D Baddeley
Mills Oakley

ORDERS

1. Direct the applicant’s solicitor to file a Notice of Address for Service on or before close of business on 24 July 2018.

2. The application in a case is dismissed.

3. The first and second applicants pay the first respondent’s costs fixed in the amount of $750.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 32 of 2018

HYUNG WAN KIM

First Applicant

HYUN KYUNG KIM

Second Applicant

JIYONG KIM

Third Applicant

JIHWAN KIM

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under r 16.05 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”) to set aside an order and to reinstate proceedings that were dismissed by this Court for want of appearance under r 13.03C(1)(c) of the Rules on 20 June 2018. 

2. The application in a case was filed on 12 July 2018. The affidavit in support makes a bare assertion that the first applicant was unable to attend the hearing due to financial hardship, where the first applicant could not pay lawyers. That statement in the affidavit does not explain why the first applicant failed to appear before the Court and does not provide any satisfactory explanation for the first applicant’s failure to appear. Nothing in the affidavit suggests the first applicant was unaware of the hearing date and on the evidence before the Court, there is no satisfactory explanation for the failure to appear. 

3. Mr Myers who appeared on behalf of the applicants, indicated that he had only recently been instructed. Mr Myers confirmed that he did have a copy of the Administrative Appeals Tribunal’s (“the Tribunal”) decision. Mr Myers sought an adjournment of the proceedings so that further attention could be given to the identification of an arguable case on behalf of his client. Mr Myers submitted that the first applicant had not had an opportunity to advance his case.

4. These were the proceedings in respect of which a Register of the Court made orders on 22 March 2018, fixing the matter for hearing and giving the first applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

5. It is apparent that the first applicant had lawyers who served a notice of an intention to withdraw on the applicant and then a notice of withdrawal.  On the face of material before the Court, the first applicant was clearly aware of the hearing date and had the opportunity, had the first applicant wished to attend the hearing. 

6. These are proceedings where the Tribunal in its decision of 25 January 2018 found it had no jurisdiction. The Tribunal identified the requirements of s 347(1) of the Migration Act 1958 (Cth) (“the Migration Act”) and reg 4.13 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal found that in the circumstances of the current application, the prescribed fee period started when the applicants received notice of the decision and ends 21 days after the date on which the notice is received.

7. The Tribunal indicated that the first provided a cheque to pay the fee which was dishonoured and that no fee was paid and no explanation was made for the fact the cheque provided was dishonoured. The Tribunal found the prescribed fee had not been paid within the fee period and no determination has been made or requested that the fee should be reduced. It was in these circumstances, that the Tribunal found the application for review was not valid and that the Tribunal had no jurisdiction. 

8. The Tribunal also made an independent finding that there is no jurisdiction by reason of s 338(2)(d) of the Migration Act. Mr Myers on behalf of his client, submitted that the finding in relation to s 338(2)(d) of the Migration Act might be the subject of an argument, that the applicant met the criteria because of the existence of a letter dated 13 September 2017 which was admitted into evidence. Whether or not there is any arguable case referrable to s 338(2)(d) of the Migration Act was an independent finding in respect of the want of jurisdiction. 

9. The Tribunal found the applicant had not paid the fee and that the delegate’s decision is not a reviewable decision in these circumstances. The application for review was not properly made and the Tribunal found it did not have jurisdiction. Those findings were open for the reasons given by the Tribunal.

10. The argument identified by Mr Myers does not identify any arguable case. The Court is not satisfied that there would be any utility in granting an adjournment in the circumstances of the present case. The adjournment request by Mr Myers was found by the Court not to be warranted in the interests of the administration of justice. 

11. For the reasons given above, no arguable case of error has been identified in relation to the decision of the Tribunal finding it had no jurisdiction.  In these circumstances, there would be no utility in setting aside the order made by the Court. Accordingly, the application in a case is dismissed. 

I certify that the preceding five (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 September 2018