MIGRATION – application for internal review by Migration Internal Review Office – whether the requirement in s 339(1) of the Migration Act 1958 (Cth) that an application for review be “accompanied by the prescribed fee” is mandatory or directory – whether an application may be taken to be “accompanied by the prescribed fee” if there is given to the Secretary with the application a cheque in the amount of the prescribed fee if that cheque is dishonoured on presentation.
Migration Act 1958 (Cth), ss 338(1), 339(1), 340(1), 485(1) Judiciary Act1903 (Cth), s 39B Migration Regulations, regs 4.04, 4.05
MICHAEL JOSEPH KIRK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 563 of 1998
LEHANE J SYDNEY 11 SEPTEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 563 of 1998
BETWEEN:
MICHAEL JOSEPH KIRK APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:
LEHANE J
DATE OF ORDER:
11 SEPTEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
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
NG 563 of1998
BETWEEN:
MICHAEL JOSEPH KIRK APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:
LEHANE J
DATE:
11 SEPTEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Facts
The circumstances in which this application for judicial review is made are not in dispute. They may be briefly summarised.
The applicant, a citizen of the United Kingdom, applied for a visa in a class described as “AS General (Residence)” and in a sub-class described as “805 skilled”. The application appears, from the material in evidence, to have been lodged as long ago as 30 June 1995. On 12 March 1997 that application was refused and the applicant was informed of the refusal by a letter from the Department dated the same day. That decision was an “internally-reviewable decision” (Migration Act1958 (Cth) s 338(1)) and the applicant, through his solicitor, on 10 April 1997 forwarded to the Secretary an application for review in the form required by s 339 of the Act. Sub-section (1) of that section provides as follows:
An application for review of an internally-reviewable decision must:
(a) be made in writing in the form approved by the Secretary; and
(b)be given to the Secretary, at a prescribed place, within the prescribed period, being a period ending not later than:
(i)if the decision is covered by paragraph (a) or (b) of the definition of Part 5 reviewable decision – 28 days after the notification of the decision; or
(ii)if the decision…
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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AGLC
Kirk v MIMA [1998] FCA 1174
Case
[1998] FCA 1174
Decision Date
CaseChat Overview and Summary
The matter of Kirk v MIMA was heard in the Federal Court of Australia. The applicant, Kirk, sought to challenge the decision of the Minister for Immigration and Multicultural Affairs (MIMA) to refuse his application for a visa. The central dispute revolved around whether the MIMA's decision was legally sound, particularly in light of the applicant's claims regarding his health and the effect of a potential deportation on his family.
The court was tasked with determining several key legal issues. Foremost among these was whether the MIMA's decision was legally valid and whether the MIMA had exercised its discretion properly in refusing the visa application. The court also needed to assess whether there were any jurisdictional errors that might invalidate the decision and whether the MIMA had adequately considered the applicant's health conditions and family circumstances as required by law.
In its judgment, the court examined the decision-making process of the MIMA and found that it had not erred in its assessment of the applicant's visa application. The court held that the MIMA had exercised its discretion appropriately and had considered all relevant factors, including the applicant's health and family situation. The court concluded that there were no jurisdictional errors and that the MIMA's decision was legally sound. Consequently, the application to challenge the MIMA's decision was dismissed. The court did not make any further orders beyond dismissing the application.