Kim v Minister for Immigration

[2013] FCCA 1876

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1876

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359A, 360, 379A, 379C

Migration Regulations 1994 (Cth)

SZFDE v Minister for Immigration [2007] HCA 35

First Applicant: DAE YOUNG KIM

Second Applicant: SOO HUN KIM

Third Applicant: HYUN JU KIM

Fourth Applicant: YOU LI KIM

Fifth Applicant: YOU NA KIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 892 of 2013

Judgment of: Judge Driver

Hearing date: 14 November 2013

Delivered at: Sydney

Delivered on: 14 November 2013

REPRESENTATION

The First, Second and Third Applicants appeared in person

Solicitors for the Respondents:

Ms D Watson

Australian Government Solicitor

ORDERS

1. For the purposes of Part 11 of the Federal Circuit Court Rules 2001 (Cth), Dae Young Kim is appointed as litigation guardian of Soo Hun Kim, and Dae Young Kim is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of his appointment.

2. The name of the first respondent is amended to “Minister for Immigration and Border Protection”.

3. The application is dismissed.

4. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG892 of 2013

DAE YOUNG KIM

First Applicant

SOO HUN KIM

Second Applicant

HYUN JU KIM

Third Applicant

YOU LI KIM

Fourth Applicant

YOU NA KIM

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 28 March 2013.  The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants’ employer nomination residence visas.  There were five applicants before the Tribunal and five applicants in the judicial review application to this Court.  The first applicant (Mr Kim) is the principal applicant, and the other applicants are members of his family. 

2. At the hearing before me today the first, fourth and fifth applicants appeared.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 5 November 2013, which I adopt. 

3. The applicants are citizens of Korea.  On 25 March 2010, they lodged with the Department applications for Employer Nomination (Residence)(Class BW) visas (the visas).  On the same day, Joo Sung Maintenance Pty Ltd (Joo Sung) lodged an application for approval of the nominated position under the employer nomination scheme, in respected of the applicants.  On 11 January 2011, a delegate refused the approval of the nomination by Joo Sung on the grounds that the company failed to satisfy the legislative requirements under regulation 5.19(2) of the Migration Regulations 1994 (Cth) (Regulations). A copy of that decision was sent to the applicants together with an invitation to either withdraw the application (as there was no approved nominating employer), or seek to have the application refused, thereby preserving rights to merits review[1].  There is no record of a response to that invitation.

   [1] Relevant Documents (RD) 220

4. On 18 February 2011, as a consequence of the refusal of the nomination of Joo Sung, a delegate refused the applicants’ visas[2].

   [2] RD 237

5. On 21 March 2011, the applicants through their authorised representative filed an application for review with the Tribunal.  Joo Sung did not apply for review of the decision refusing its nomination. 

6. The primary criteria to be satisfied at the time of application for a Subclass 856 visa (the relevant subclass) included[3]:

   The applicant has been nominated by an employer in accordance with r.5.19(2), for an appointment in the business of that employer.

   [3] Clause 856.213(a)

7. The primary criteria to be satisfied at the time of decision included:

   The appointment mentioned in cl.856.213(a) has been approved, has not been withdrawn, continues to satisfy the criteria for approval and is still available to the applicant[4].

   [4] Clause 856.221

8. On 26 February 2013, the Tribunal wrote to the applicants through their authorised representative by facsimile pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) inviting them to provide comments on the refusal of the application lodged by Joo Sung by 26 March 2013[5].  The letter included a warning that the Tribunal may make a decision on the review without taking further steps and that the applicants would lose their right to a hearing if comments were not provided by that time.  After two failed attempts, the Tribunal received confirmation of its facsimile[6].

   [5] RD 259-261

   [6] RD 256

9. There is no record of any response or any request for an extension of time from the applicants.

Tribunal decision

1. On 28 March 2013, the Tribunal handed down its decision affirming the decision of the delegate to not grant the applicants their visas.

2. The Tribunal found that s.359C of the Migration Act applied, and that pursuant to s.360(3) of the Migration Act, the primary applicant had no entitlement to appear before the Tribunal.

3. The Tribunal found that Joo Sung had made an application on 25 March 2010 for approval of a nominated position under the employer nomination scheme with the nominee being the primary applicant.  However, it also found that the Department had refused the application for nomination on 11 January 2011 and that there was no record of an application for review of that decision.  The applicants had been invited to respond to this information, but had failed to do so[7].

   [7] RD 268 [18]

4. It concluded that the appointment mentioned in clause 856.213(a) of the Regulations had not been approved, and that the primary applicant did not satisfy the requirements of clause 856.221.

5. There was otherwise no material to indicate that any of the applicants were nominated by an employer for an appointment in the business of that employer.  The Tribunal therefore concluded that none of the applicants satisfied clause 856.213.

6. These proceedings began with a show cause application filed on 30 April 2013.  The grounds in that application are:

   Our migration agent (Ozbvisa consultant) lodged two applicants.  One to the employer nomination scheme (ENS) and another to the Department of Immigration and Citizenship Centre (DIAC) to receive a permanent visa.  However they both came to a result of being refused.  The agent informed us with this result without telling us the paperwork of the refused letters.  With this result we asked the agent to lodge the applications to the Migration Review Tribunal (MRT).  However without our consent, the agent placed only one of the declined papers to the MRT hence resulting to a decline from the MRT.  We did not know this until we received the declined letter from the MRT.  We called the agent and then he informed us about his mistake.  He said that we were allowed to use this reason to take it to the court however when we asked for the files and documents based on this case he did not have the documents as he said he deleted them.  As a result we were not able to receive the visa.

7. I gave directions in this matter on 28 May 2013.  I provided the applicants with an opportunity to file and serve affidavit evidence in support of their application by 2 July 2013.  They did not take up that opportunity. 

8. I received as evidence the applicants’ affidavit filed with the application which simply provides a copy of the Tribunal decision and incidental documents.  I also received the book of relevant documents filed on 29 May 2013. 

9. I pointed out to the applicants the difficulty they faced in establishing any jurisdictional error by the Tribunal in the absence of supporting evidence.  At that point the applicants produced what purports to be a letter dated yesterday from their former migration agent.  The letter relevantly reads as follows:

   My name is Soon Ha KIM who was a Registered Migration Agent who represented for Mr. Dae Young KIM in March 2011.  I am writing this statement that I lodged the MRT application on behalf of Mr.KIM.  However I mistakenly lodged applicant’s application only.  I heard that MRT could not proceed Mr KIM’s application because there was no nominator’s application lodged.  In the result of my mistake, Mr. KIM and family are having trouble to get permanent Visa in Australia.  I severely regretted what I had done in the meantime.  I do not know how I fix this turmoil.  Because I am not Registered Migration Agent anymore.

10. I asked the applicants why the letter was unsigned.  They told me that this was because it was an attachment to an email.  I was able to verify from Mr Kim’s mobile phone that he had received an email from a person called Soon Ha Kim with the document attached.  I was also able to establish from page 154 of the bundle of relevant documents that a person by that name was appointed as the applicants’ migration agent while their visa application was before the Minister’s Department.  I accept that the letter tendered by the applicants is indeed from their former migration agent.  I received the letter over the objections of the solicitor for the Minister and it became an exhibit.

11. The Minister’s submissions traverse accurately the legal principles bearing upon the issue raised in this application.  The difficulty for the applicants is that, even accepting as true the allegation in the application and the admission made by their former migration agent, there was no fraud on the Tribunal and nothing to establish jurisdictional error.  As has unfortunately occurred from time to time, this is simply another case of negligence by a registered migration agent in representing the interests of his clients. 

12. The applicants have grounds, if they wish, to complain to the Migration Agents Registration Authority.  The Tribunal had written to them through another agent who had replaced Soon Ha Kim while the proceedings were before the Tribunal[8].  In the invitation to comment[9], the problem confronting the applicants was squarely raised with them.  They had an opportunity that time to draw to the Tribunal’s attention the problem they now raise before this Court.  They did not do so.  Even if they had, there was nothing that the Tribunal could have done about it.  The Tribunal has no power to extend time for the lodging of a review application.  The failure by the agent to lodge a review application on behalf of the proposed sponsor created an insuperable problem for the applicants before the Tribunal, but it did not deprive the Tribunal of its jurisdiction. 

    [8] RD 255

    [9] The invitation to comment which is reproduced on a number of pages, but materially on pages 260 to 261 of the book of relevant documents

13. In short, the decision made by the Tribunal was probably the inevitable consequence of the mistake made by the applicants’ former migration agent, but the decision of the Tribunal was made within jurisdiction.  I otherwise agree with and adopt the Minister’s written submissions. 

14. In SZFDE v Minister for Immigration[10], the High Court distinguished between a situation involving fraud on the Tribunal, and mere negligence or mistake.  The Court stated at [53]:

    In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.  The outcome in the present appeal stands apart from and above such considerations.

    [10] [2007] HCA 35

15. For completeness, I accept that the s.359A letter was correctly sent to the authorised facsimile number provided by the applicants. It gave clear particulars of the information it considered would be the reason or part of the reason for affirming the decision under review. The letter allowed 28 days for response and the decision was not made until two days after the expiry of that time frame. There is no record of any response from the applicants on the Tribunal file, even after the expiry of the given time, nor do the applicants asserts in their application that they gave any response. The letter therefore complies with the requirements of ss.359A, 379A, 379C of the Migration Act and regulation 4.17. Accordingly, s.360(3) was engaged, and the applicants had no entitlement to a hearing. The Tribunal has also referred to the correct version of the Regulations as at the time of application (25 March 2010) and the time of its decision (28 March 2013), and although it paraphrases clause 856.221 in its reasons, it correctly identifies the content of that clause.

16. I conclude that the applicants have failed to demonstrate any jurisdictional error by the Tribunal.  The decision is therefore a privative clause decision and the application must be dismissed.  I so order.

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicants were interested in considering their options for further action, but did not make submissions in opposition to an order for costs.  I am told that Soo Hun Kim is a minor and Hyun Ju Kim is Mr Kim’s wife.  The remaining applicants are their adult children.  The Minister only seeks a costs order against the first applicant. 

18. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

19. I will further order that, for the purposes of Part 11 of the Federal Circuit Court Rules, Dae Young Kim is appointed as litigation guardian of Soo Hun Kim, and Dae Young Kim is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of his appointment.

20. I will direct that the name of the first respondent is amended to “Minister for Immigration and Border Protection”.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 20 November 2013