Kim v Minister for Immigration - [2020] FCCA 1488

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1488

Catchwords:
MIGRATION – Review of decisions – judicial review – grounds of review – procedural fairness.

MIGRATION – Review of decisions – judicial review – application – extension of time – no prospects.

Legislation:

Migration Act 1958 (Cth), ss.362(1A)(b), 477

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Singh v Minister for Home Affairs [2019] FCA 723

First Applicant:

SIN WOONG KIM

Second Applicant:

KYUNGHWA KIM

Third Applicant:

NADO KIM

Fourth Applicant:

YERIN KIM

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 873 of 2019

Judgment of:

Judge Jarrett

Hearing date:

4 June 2020

Date of Last Submission:

4 June 2020

Delivered at:

Brisbane

Delivered on:

8 June 2020

REPRESENTATION

The Applicants in person

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

The application filed on 9 October, 2019 is dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.64.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 873 of 2019

SIN WOONG KIM

First Applicant

KYUNGHWA KIM

Second Applicant

NADO KIM

Third Applicant

YERIN KIM

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 29 June, 2017 the first applicant made application for an Employer Nomination (Permanent) (Class EN) 186 (Employer Nomination Scheme) visa. The second, third and fourth applicants applied for a visa as part of the first respondent’s family group. They advanced none of their own claims to a grant of a visa. The applications were refused on 25 June, 2018.
The first applicant applied for a review of the delegate’s decision but that was dismissed on 12 August, 2019 because the first applicant failed to attend the hearing convened by the second respondent for the purposes of the review application. The first applicant subsequently applied for reinstatement of his application but on 3 September, 2019 that was also refused.
The applicants now seek an extension of time within which to bring an application for judicial review in respect of the second respondent’s refusal to reinstate the application for review. An extension of time is needed because the application was filed one day outside of the 35 day time period limited for filing judicial review applications such as this. The applicants seek an extension of time pursuant to s.477 of the Act.
At the commencement of the hearing before me, Mr Kim appeared. There was no separate appearance by the other applicants. Mr Kim sought an adjournment of the proceedings so that he could obtain legal advice. He said in argument that…

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: [2020] FCCA 1488
Decision Date: 8 June 2020

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard an application for judicial review brought by Mr Kim against the Minister for Immigration. Mr Kim sought to challenge a decision made by the Minister, though the specific nature of that decision is not detailed in the provided text.

The primary legal issues before the Court were whether the Minister's decision was vitiated by a failure to afford Mr Kim procedural fairness, and whether an extension of time should be granted for the filing of the application, given that the Court considered the application to have no prospects of success.

Judge Jarrett found that the application for judicial review lacked merit and that there were no grounds upon which to grant an extension of time. The Court's reasoning, as indicated by the catchwords, focused on the absence of any arguable case for a breach of procedural fairness and the futility of extending time for an application deemed to have no prospects of success.

Consequently, the Court dismissed the application for judicial review and refused the extension of time.

Orders