Kirk v MIMA

Case [1998] FCA 1174


FEDERAL COURT OF AUSTRALIA

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 Act 1903 (Cth), s 39B
Migration Regulations, regs 4.04, 4.05

Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446, followed
Wielgus v Removal Review Authority [1994] 1 NZLR 73, cited
Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529, applied
National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668, applied

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:

  1. 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 of 1998

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 Act 1958 (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…

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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.

Orders

Orders of the court

1.

The application be dismissed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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