Kim v Minister for Immigration

[2009] FMCA 634

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 634

MIGRATION – No appearance – consideration (obiter) of decisions of Judges of the Federal Court at first instance.

Federal Magistrates Court Rules 2001

Suh v Minister for Immigration [2009] FCAFC 42
Minister for Immigration v SZANS [2005] FCAFC 41

Applicant: DOO YOUNG KIM

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3421 of 2008

Judgment of: Raphael FM

Hearing date: 1 July 2009

Date of Last Submission: 1 July 2009

Delivered at: Sydney

Delivered on: 1 July 2009

REPRESENTATION

For the Applicant: No appearance

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

2. Applicant to pay the First Respondent's costs assessed in the sum of $2,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3421 of 2008

DOO YOUNG KIM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant commenced proceedings in this court on 23 December 2008 seeking a review of a decision made by the Migration Review Tribunal on 10 November 2008. He gave as his address 9/62 Park Street Campsie in New South Wales. The applicant attended a first directions hearing before a Registrar of this court on 29 January 2009 where orders were made including an order that the matter be set down for hearing today at 10.15a.m. The applicant was assisted by an interpreter. The applicant did not comply with any of the other orders made by the Registrar, in particular did not file any amendments to his application and did not appear this morning at 10.15a.m. nor was he present when his name was called outside the court at 10.36a.m. In those circumstances I propose to dismiss this matter pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

2. I would say to Mr Kim that, should he consider making an application for this case to be reinstated, he would do well to consider the views expressed by a three member Full Bench of the Federal Court in Suh v Minister for Immigration [2009] FCAFC 42 which would appear to me to be determinative of the issues in this case. Whilst I am referring to that case I note with some interest the remarks made by the Full Bench at [29], in particular the following:

   “The Federal Magistrate thought that the decision in Kim should be followed in preference to that in Tvarkovski because Lander J was "sitting as the Full Court of the Federal Court on appeal from [the FMCA]". There is no tension between Tvarkovski and Kim and it was therefore not necessary to approach the matter that way. Furthermore in Kim, although Lander J was exercising the appellate jurisdiction of the Court, he was sitting as a single judge and not as the Full Court (see Federal Court of Australia Act 1976 (Cth), s 25(1AA)). The Federal Magistrate was correct to regard herself as bound by Kim. That would be so whether it was a judgment of a single judge or a Full Court. However, we wish to enter a general caveat against any notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction and, if the former, on appeal from any particular court or judicial officer. The matter was not the subject of argument and we will, accordingly, do no more than register our concern that the true position may have been misunderstood.”

3. I have no doubt that, if the matter had been the subject of argument, their Honours would have been referred to the decision of a Full Bench in Minister for Immigration v SZANS [2005] FCAFC 41, in which at [35] the Full Bench said:

   “[35] In NAAT v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FMCA 136; (2002) 196 ALR 376 ("NAAT") at [27] Raphael FM held that the judgments of single judges of this Court, are not binding on Federal Magistrates when those judgments are not delivered as an exercise of the Court’s appellate jurisdiction from Federal Magistrates. However, his Honour observed that ordinary principles of comity required Federal Magistrates to follow judgments of single judges of this Court unless they were considered to be wrong.

   [36] The authorities to which Raphael FM referred in NAAT certainly lend some support to his Honour’s analysis. They suggest that the principle of stare decisis requires a court lower in the particular judicial hierarchy to follow a decision of a court higher in that hierarchy only where that higher court is exercising appellate jurisdiction; see Favelle Mort Ltd v Murray[1976] HCA 13; (1976) 133 CLR 580 at 591 (Barwick CJ); Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504 (Gummow J); Chief Executive Officer of Customs v Tony Longo Pty Limited[2001] NSWCA 147; (2001) 52 NSWLR 458 at [51] – [52] (Heydon JA). See R Cross & J Harris, Precedent in English Law, Oxford University Press, Oxford, 1991, p 123.

   [37] This limitation on the principle of stare decisis can lead to odd results. For example, had Madgwick J been sitting on appeal from a Federal Magistrate in MMM, his judgment would have been binding upon all Federal Magistrates. However, because he was exercising original jurisdiction, a matter of sheer chance, at least in relation to migration cases, his judgment was not strictly binding.”

4. Needless to say, notwithstanding the apparent difference of opinion on the Full Bench the principle of comity referred to in SZANS and in NAAT is always foremost in the mind of any Federal Magistrate when considering the views of Judges of the Federal Court.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  8 July 2009