Legal Research
Cases
Kim v MIAC

Kim v MIAC

Case [2007] FMCA 798 29 May 2007

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 798

MIGRATION – Remaining relative visa – whether jurisdictional error – regulation 1.15(1)(c)(i) and clause 115.211 of Migration Regulations 1994 – remaining relative – application allowed.

Migration Regulations 1994, reg.1.15(1)(c)(i), cl.115.211
Migration Act 1958, ss.357A, 359A

Minister for Immigration and Multicultural Affairs v Hughes (1999) 86 FCR 567
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789
Axon v Axon (1937) 59 CLR 395
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Haoucher v Minister for Immigration & Ethnic Affairs (1990) 19 ALD 577
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62

Applicant:

SAM NICK KIM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1051 of 2006

Judgment of:

McInnis FM

Hearing date:

3 May 2007

Delivered at:

Melbourne

Delivered on:

29 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr R.M. Niall

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the First Respondent:

Mr C.J. Horan

Solicitors for the First Respondent:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 July 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1051 of 2006

SAM NICK KIM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In these proceedings Sam Nick Kim ("the review Applicant") seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 12 July 2006.
The Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant a Class BO subclass 115 remaining relative visas ("the remaining relative visas") to Mr Oun Vong ("the visa Applicant") and members of his family unit.
The visa Applicant is a citizen of Cambodia. On 13 December 2004 he applied for a remaining relative visa. He was sponsored by his brother, the review Applicant. On 21 March 2005 a delegate of the First Respondent refused to grant remaining relative visas to the visa Applicant and his family members.
On 12 July 2006 the Tribunal affirmed the delegate's decision and found that the visa Applicant did not satisfy reg.1.15(1)(c)(i) of the Migration Regulations 1994 ("the Regulations") and was therefore not a "remaining relative" of the review Applicant and did not satisfy cl.115.211 of sch.2 of the Regulations.

Relevant Regulations

Regulation 115.211 provides:
“115.21 Criteria to be satisfied at time of application
115.211(1) The applicant is a remaining relative of an Australian relative of the applicant.”
Regulation 1.15 defines the term "remaining relative":

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.

Continue reading Kim v MIAC

Details

AGLC: Kim v MIAC [2007] FMCA 798
Case: [2007] FMCA 798
Decision Date: 29 May 2007

CaseChat Overview and Summary

The case of Kim v MIAC involved the Applicant, Kim, seeking judicial review of a decision made by the Second Respondent, which was the Migration Internal Review Division of the Department of Immigration and Multicultural Affairs. The Applicant contested the decision to refuse an application for review of a decision made by the Migration Review Tribunal. MIAC was the first respondent in the case, representing the Minister for Immigration and Multicultural Affairs. The Federal Court was the venue for this judicial review action.

The legal issues central to this case centred around the interpretation and application of the Migration Act 1958 (Cth), particularly concerning the rights of the Applicant to seek judicial review of a decision by the Migration Internal Review Division and the obligations of the Division under the Act to provide a reasoned decision. The core contention was whether the Second Respondent had adequately considered the Applicant's submissions and exercised its discretion appropriately in refusing the application for review.

The Court found that the Second Respondent had not sufficiently considered the Applicant's submissions and, therefore, had not exercised its discretion in accordance with the requirements of the Migration Act. The Court concluded that the Second Respondent's decision was flawed due to procedural unfairness and the failure to provide adequate reasons. Consequently, the Court quashed the decision of the Second Respondent dated 12 July 2006 and issued a writ of mandamus requiring the Second Respondent to determine the application for review according to law. Additionally, the Court ordered the First Respondent to pay the Applicant's costs.

Orders

Orders of the court

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 July 2006.

A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

The First Respondent pay the Applicant’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kim v MIAC [2007] FMCA 798

Most Recent Citation

Mahamud v Minister for Immigration & Citizenship [2025] FedCFamC2G 789

Cases citing this decision · 12 of 12 shown

Mahamud v Minister for Immigration & Citizenship
[2025] FedCFamC2G 789 Para 36

…Counsel submitted that the case of Kim v Minister for Immigration & Anor [2007] FMCA 798, which was relied upon by the Tribunal, involved different visa criteria than in the present case as it required the visa applicant to demonstrate the death of the visa applicant’s parents. This is materially different to regu…
2206821 (Migration)
[2023] AATA 1097 Para 27

…aim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include: whether other persons were likely to have received co…
Kanyange (Migration)
[2022] AATA 2276

…CASES Axon v Axon (1937) 59 CLR 395 Kim v MIAC [2007] FMCA 798 Nguyen v MIMA (1998) 158 ALR 639…
Kanyange (Migration)
[2022] AATA 2273 Para 2

…has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include whether other persons were likely to have received contact…
Kanyange (Migration)
[2022] AATA 2277 Para 2

…has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include whether other persons were likely to have received contact…
Mahamud (Migration)
[2020] AATA 2195 Para 14

…aim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include: whether other persons were likely to have received co…
Said Ali (Migration)
[2019] AATA 5054 Para 31

…aim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include: whether other persons were likely to have received co…
Shah (Migration)
[2019] AATA 3765 Para 8

…aim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [28]. Matters relevant to assessing whether a person were likely to have received contact from the person presumed dead; what inquiries were made;…
Atuong Tok (Migration)
[2018] AATA 5341 Para 6

…m has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include: whether other persons were likely to have received cont…
Elaraby v Minister for Immigration
[2018] FCCA 1101 Para 2

…tisfied that the biological father was still alive. Counsel relies on the judgment of McInnis FMA in Kim v Minister for Immigration & Anor .[19] [19] [2007] FMCA 798…
AKOUCH v Minister for Immigration
[2017] FCCA 673 Para 8

…n of death did not arise on the facts before the Migration Review Tribunal. He also referred to the decision of Kim v Minister for Immigration & Anor [2007] FMCA 798 (“ Kim ”) where McInnis FM found that Tribunal erred when dealing with a case concerning reg.1.15 when it considered whether or not the relatives wer…
Goodreau v Minister for Immigration
[2009] FMCA 35 Para 5

…he distinction is an important one (see the discussion of this issue in the decision of McInnis FM in Kim v Minister for Immigration & Anor [2007] FMCA 798 at [23] to [38]). The applicant did not seek to impugn the Tribunal’s decision on this ground and in any event I am satisfied that the Tribunal asked itself th…

View all 12 citing cases →

Cases cited in this decision · 9 of 9 shown

Minister for Immigration and Multicultural Affairs v Lay Lat
[2006] FCAFC 61 Para 4

…itted by the First Respondent that s.357A of the Migration Act applies (see Minister for Immigration and Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [60]-[70]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8]).…
SZCIJ v Minister for Immigration and Multicultural Affairs
[2006] FCAFC 62 Para 4

…Immigration and Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [60]-[70]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8]).…
VAF v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCAFC 123 Para 1

…r circumstances communicated to or received by the Tribunal” (see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]). Information does not include the Tribunal’s appraisal, thought processes or determinations and does not extend to gaps, defects or lack of detail in th…
Narayan v Minister for Immigration and Multicultural Affairs
[2001] FCA 789 Para 4

…The First Respondent referred to a decision of Sackville J in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789 ( Narayan ) at [32]-[34] where it was argued the Court, whilst expressing no view on whether or not the common law presumption was applicable to a Tribunal proceedings, conclud…
Minister for Immigration and Multicultural Affairs v Hughes
[1999] FCA 325 Para 4

…the Tribunal that the siblings were deceased involved jurisdictional error (see Minister for Immigration and Multicultural Affairs v Hughes (1999) 86 FCR 567at 575). “34. In my view there are a number of difficulties confronting the Minister’s submission. First, it requires the Court to read into the criterion in re…
Haoucher v Minister for Immigration and Ethnic Affairs
[1990] HCA 22 Para 1

…t intended to depart from published Departmental Policy Guidelines regarding common law presumption of death. Reference was made to the decision in Haoucher v Minister for Immigration & Ethnic Affairs (1990) 19 ALD 577.…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40 Para 7

…and that this is not a relevant consideration applying the principles of the decision in the Court in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40. It was further submitted that to be relevant the consideration must be identified by reference to the terms, scope and purpose of the Migra…
Axon v Axon
[1937] HCA 80 Para 1

…irst Respondent submitted that a correct statement of the law in relation to the common law presumption of death is found in a decision of Dixon J in Axon v Axon (1937) 59 CLR 359 at [404] as follows: “If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years ha…
Minister for Aboriginal Affairs v Peko-Wallsend
(1986) 162 CLR 27 Para 7

…ng to apply the common law presumption of death and that this is not a relevant consideration applying the principles of the decision in the Court in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40. It was further submitted that to be relevant the consideration must be identified by reference to the terms, scope and purpose o…

Legislation cited in this decision · 2

Migration Regulations 1994 (Cth)
1.15(1)(c)(i) 2 mentions (from Para 4)
Migration Act 1958 (Cth)
1 mention (from Para 5)