Kim v Minister for Immigration and Citizenship

[2007] FCA 983

FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration and Citizenship [2007] FCA 983

IN SOOK KIM, CHOUN YOUNG AN, HEE JOO AN AND HEE WON AN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 314 OF 2007

MADGWICK J
2 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 314 OF 2007

BETWEEN:

IN SOOK KIM
First Applicant

CHOUN YOUNG AN
Second Applicant

HEE JOO AN
Third Applicant

HEE WON AN
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	2 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants are to pay the respondent’s costs of the application in the sum of $3,500.00.

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 314 OF 2007

BETWEEN:

IN SOOK KIM
First Applicant

CHOUN YOUNG AN
Second Applicant

HEE JOO AN
Third Applicant

HEE WON AN
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	2 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an application for an extension of time in which to file and serve a notice of appeal.  The intended appeal is from a decision of the Federal Magistrates Court, adverse to the applicants, delivered on 6 February 2007 by Smith FM.

2. The first applicant and her family (the second, third and fourth applicants) have been in Australia for some six years.  On 9 February 2005 the applicant applied for a second Temporary Business Entry (Class UC) visa.  At the time the visa application was lodged, the proposed sponsor, BDS Recruit Pty Ltd, was an approved business sponsor.  However, in October 2005 BDS Recruit Pty Ltd informed the Department of Immigration and Multicultural Affairs (as it then was) that it no longer wished to sponsor the first applicant.  On 11 November 2007 a delegate of the Minister refused to grant the primary visa and secondary visas for the first applicant’s family.

3. The applicants made a subsequent application for review to the Migration Review Tribunal (“the Tribunal”). The Tribunal formed the view that it did not have jurisdiction to review the decision as the requirements of s 338(2)(d) of the Migration Act 1958 (Cth)(“the Act”) had not been satisfied at the time of lodgement of the application for review. It is a criterion of such a visa, for it to be a Tribunal-reviewable decision, that the applicant is sponsored by an approved sponsor at the time the application for review is made. As this criterion was not satisfied, the Tribunal held that it did not have jurisdiction.

4. The Federal Magistrate identified a possible lacuna in the terms of s 338(2)(d) when there are primary and secondary visa applications, the result of the lacuna being that the primary visa applicant would face the jurisdictional test of having an approved sponsor at the time of application, while the secondary visa applicant would not. His Honour took the view that this would lead to a futile right of appeal for the secondary visa applicants, whose rights to remain in the country were tied to the primary visa applicant, who would have no rights of appeal. This led his Honour to accept the respondent’s suggested construction of s 338(2)(d), that any such “futile” appeal would not be possible.

5. The matter before me is an application for an extension of time to appeal from the decision of the Federal Magistrates Court. Even if the learned Magistrate is mistaken about section 338(2)(d) it appears that it would be quite futile in the circumstances to uphold the appeal in this matter. It would have been futile for his Honour to grant any relief and therefore it should have been refused.

6. The extension of time will not be granted given that, as stated above, any appeal would be futile.

1. The application will be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:        2 July 2007

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	J D Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 2007
Date of Judgment:	2 July 2007