Kim v Minister for Immigration and Citizenship

[2007] FCA 1695

FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration and Citizenship [2007] FCA 1695

Migration Act 1958 (Cth) s 477
Migration Regulations 1994 (Cth) sch 2

Minister for Immigration and Citizenship v SZKKC 96 ALD 25 considered

MI SOON KIM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 1283 OF 2007

TAMBERLIN J
5 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1283 OF 2007

BETWEEN:

MI SOON KIM
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	5 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1283 OF 2007

BETWEEN:

MI SOON KIM
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	5 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of Federal Magistrate Emmett on 21 May 2007 dismissing an application for review of a decision of the Migration Review Tribunal on the basis that, because of the time limit imposed, the Federal Magistrates Court did not have jurisdiction to deal with the matter.  Subsequent to her Honour’s decision, the law was clarified by a Full Court of this Court in the case of Minister for Immigration and Citizenship v SZKKC 96 ALD 25. The effect of the Full Court’s decision is that the decision of the Federal Magistrate is now regarded as affected by legal error in relation to its consideration of s 477 of the Migration Act 1958 (Cth).

2. The question which then arises is whether, having regard to all the circumstances, it would be futile to remit the matter back to the Federal Magistrate or the Migration Review Tribunal for determination according to law. The jurisdictional obstacles which may render remittal futile arise from the facts, first, that it was not open to the Minister to grant the applicant’s visa application because a condition precedent was that at the time of decision a nomination of the occupational training was not lodged, and secondly, that the application for review by the Migration Review Tribunal was out of time. The relevant provision is subclass 442.22 of schedule 2 of the Migration Regulations 1994 (Cth).

3. In view of the fact that these insuperable obstacles exist, in my view no useful purpose would be served by referring the matter back to the Federal Magistrate or the Migration Review Tribunal.  Accordingly, in this case I am satisfied that the application for leave to appeal which has been lodged should be dismissed.  The order of the court is that the application for leave to appeal is dismissed.

4. In all the circumstances, I am not disposed to make an order for costs against the applicant.  The law has changed subsequent to the decision by the Federal Magistrate, and although that doesn’t affect the outcome in this case, nevertheless it does not seem to be a matter where costs would be appropriate.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        7 November 2007

Counsel for the Respondent:	Ms M Mafessanti
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 November 2007
Date of Judgment:	5 November 2007