Kim v Minister for Home Affairs
[2019] FCA 303
•15 February 2019
FEDERAL COURT OF AUSTRALIA
Kim v Minister for Home Affairs [2019] FCA 303
Appeal from: Application for an extension of time to file leave to appeal: Kim & Ors v Minister for Home Affairs & Anor (No.2) [2018] FCCA 2685 File number(s): NSD 1515 of 2018 Judge(s): BROMWICH J Date of judgment: 15 February 2019 Catchwords: MIGRATION – application for an extension of time to file leave to appeal orders made by a judge of the Federal Circuit Court of Australia – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 140E, 140GB
Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)
Federal Court Rules 2011 (Cth) rr 35.13(a), 35.14(3)(c)(ii)
Migration Regulations 1994 (Cth) cl 457.223 of Sch 2
Date of hearing: 15 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Applicants: The First Applicant appeared in person on behalf of the applicants Counsel for the First Respondent: Mr R J White of Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1515 of 2018 BETWEEN: HYUNG WAN KIM
First Applicant
HYUN KYUNG KIM
Second Applicant
JIYONG KIM (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
15 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The first applicant and second applicant pay the first respondent’s costs of and incidental to this application as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)BROMWICH J:
There are four applicants before the court seeking an extension of time and leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 19 July 2018. The primary applicant is the husband of a family and he is the only person before me today. The other three applicants are his wife and two children, who are minors. The primary judge refused an application to reinstate an application for judicial review of a decision made by the Administrative Appeals Tribunal.
On 25 January 2018, the Tribunal had decided that it did not have jurisdiction to entertain the applicant’s review application, for reasons I will come to shortly. The decision made by the primary judge to dismiss an application to reinstate proceedings is interlocutory. In order to appeal from an interlocutory decision, the applicants require leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Such an application must be made within 14 days after the decision which is sought to be appealed from: see r 35.13(a) of the Federal Court Rules 2011 (Cth). This meant that the applicants needed to file an application for leave to appeal by 2 August 2018.
Instead, the application was filed 19 days late, on 21 August 2018. The applicants, therefore, require not just leave to appeal but an extension of time to file their application for leave to appeal. I will briefly outline the chronology of events that has taken this case to this point.
On 24 November 2016, the first applicant applied for a Temporary Business Entry (Class UC) (Subclass 457) visa on the basis of a nomination by a sponsor, Nam Yong Kim. The other three applicants applied for visas as members of his family unit. On 8 December 2017, a delegate of the first respondent, the Minister for Home Affairs, refused the grant of a visa.
The reason for that refusal of the visas was that the first applicant was not the subject of an approved nomination. He, therefore, did not satisfy cl 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth). On 22 December 2017, the applicants lodged an application for a merits review with the Tribunal. They appointed a registered migration agent as their authorised representative.
On 8 January 2018, the Tribunal wrote to the first applicant inviting him to comment on or respond to information on the question of whether the Tribunal had jurisdiction to consider the application for merits review. The particular information that the first applicant was being asked to comment upon was:
(1)his cheque payment was dishonoured on 28 December 2017 such that the prescribed application fee had not been paid; and
(2)at the time the application for merits review was lodged, the first applicant was not identified in an approved or pending nomination under s 140GB of the Migration Act 1958 (Cth) and there was also no pending application for review before the Tribunal of either a decision not to approve the sponsor or not to approve the nomination: see ss 140E and 140GB of the MigrationAct.
The Tribunal received no response from the applicant to that invitation and I infer that none was provided. The required application fee was not paid. On 25 January 2018, the Tribunal found that it did not have jurisdiction to review the delegate’s decision for the reasons that had been raised by the Tribunal in its 8 January 2018 letter to the first applicant.
On 1 March 2018, the applicants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. At that time, the applicants had legal representation. On the first court date for the judicial review application, orders were made by consent that listed the application for show cause for hearing on 20 June 2018 at 9.30 am. A month prior to that scheduled hearing date, on 17 May 2018, the applicants’ legal representative filed a notice of withdrawal as a lawyer.
At the time of the scheduled hearing of the show cause application on 20 June 2018, there was no appearance by or on behalf of the applicants. The primary judge dismissed the application with costs, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). On 12 July 2018, the applicants filed an application in a case, seeking to set aside those dismissal orders and to reinstate the application for judicial review. On 19 July 2018, the hearing of the reinstatement application was conducted. The applicants were legally represented at that hearing. The primary judge dismissed the reinstatement application, with costs. On 21 August 2018, the applicants filed the present application for an extension of time and leave to appeal.
Given the reasons for the Tribunal finding that it had no jurisdiction, the underlying application for judicial review would appear to have had very poor prospects of success, to say the least.
The application in this court was accompanied by an affidavit of the first applicant. That affidavit annexed a number of documents. But notably absent was any draft notice of appeal, as is required by r 35.14(3)(c)(ii) of the Federal Court Rules. Instead, the affidavit recounts some of the steps leading to the application being made.
In the course of the hearing today, I asked the first applicant directly what his explanation was for bringing the application 19 days late. He said that if he knew that he had to bring the application within a certain time he would have done so, but he didn’t know. The Minister submits that this explanation is wholly inadequate, especially given the applicant’s prior history of retaining migration agents and solicitors. I agree, but might have a better view if some underlying merit attaching to some identified grounds of appeal was before me.
The only substantive reference to be gleaned from the application for an extension of time and leave to appeal on the supporting affidavit raises objections to procedural fairness. There are also some convoluted issues concerning the application for approval of a sponsor that was not apparently before the Tribunal. It is not necessary to go into all of the detail behind this case. There is simply nothing before me that gives the slightest hint of there being any viable case for an appeal from the decision of the primary judge dismissing the reinstatement application. That is made worse by the fact that there does not appear to be any foundation for asserting error on the part of the Tribunal in finding that it did not have jurisdiction and, therefore, that the judicial review application before the primary judge originally must have been equally hopeless.
In all of the circumstances, there is no proper basis to grant leave to appeal, as there is no apparent viable ground of appeal. I should also observe that in the almost six months since the filing of the application for an extension of time and leave to appeal and accompanying affidavit, nothing whatsoever appears to have been done by the applicant to advance this proceeding in this court. In all of the circumstances, there is no proper basis to provide the relief that is sought.
In those circumstances, there is no alternative but to dismiss the application for an extension of time and leave to appeal. I can see no reason not to order costs against the two adult applicants, the first applicant and, his wife, the second applicant.
The orders of the Court are:
(1)The application for an extension of time and leave to appeal be dismissed.
(2)The first applicant and second applicant pay the first respondent’s costs of and incidental to this application as agreed or assessed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 6 March 2019
SCHEDULE OF PARTIES
NSD 1515 of 2018 Applicants
Fourth Applicant:
JIHWAN KIM
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