Kwon & Ors v Minister for Immigration
[2007] FMCA 652
•23 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KWON & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 652 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of an Educational (Temporary) (Class TH) visa – show cause proceedings under r.44.12 of the Federal Magistrate Court Rules 2001 (Cth) – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.338, 347, 476 Federal Magistrates Court Rules 2001 (Cth), r.44.12 |
| First Applicant: | SHIN HEE KWON |
| Second Applicant | KUNG JOONG KIM |
| Third Applicant: | IL JOONG KIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG714 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2007 |
REPRESENTATION
| Applicants: | Applicants appeared in person with the assistance of a Korean interpreter |
| Advocate for the Respondent: | Mr B Cramer of Blake Dawson Waldron |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 1 March 2007 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG714 of 2007
| SHIN HEE KWON & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This matter was brought before the Court by the applicants seeking an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). Both sides appeared. The primary applicant is a self-represented litigant and had the assistance of a Korean interpreter. I believe it is the parties’ interest to know with certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated that I would publish my written reasons shortly.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on 1 March 2007 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 19 January 2007 rejecting the application on the ground that the Tribunal did not have jurisdiction in this matter.
The applicants applied for an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act, in respect of the Tribunal decision of S Karas, reference 060401447.
In the Response filed on 17 April 2007 the first respondent submits that the application for an order to show cause should be dismissed pursuant to r.44.12(1)(a) of the Federal Magistrate Court Rules 2001(Cth) (“the Rules”) on the basis that it does not disclose an arguable jurisdictional error by the Tribunal.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 5 April 2007. I have marked this as Exhibit “A" and the contents were read into evidence.
Background
The Tribunal decision contains the following background information, which I adopt for the purposes of this judgment:
This is an application for review of purported decisions made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant Ms Shin Hee Kwon born on 20 January 1967 in Korea, Mr Yong Ku Kim born on 14 January 1962 in Korea, Mr Kung Joong Kim born on 26 July 1991 in Korea and Mr Il Joong Kim born on 24 August 1994 in Korea (the applicants) Educational (Temporary) (Class TH) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied to the Department of Immigration and Multicultural Affairs (the Department) for an Educational (Temporary) (Class TH) visa on 14 October 2005. The applicants applied to the Tribunal on 4 May 2006 for review of the delegate’s purported decision.
The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether a valid application has been made for review of the delegate’s decision.
The Tribunal formed the preliminary view that it did not have jurisdiction because at the time of application to the Tribunal the delegate had not made a decision to refuse this visa. The Tribunal wrote to the applicants on 16 November 2006 inviting submissions on this issue. The applicants made written submissions received by the Tribunal on 11 December 2006.(CB 47)
Application for review of the Tribunal’s decision
The application for review filed in these proceedings sets out the following grounds:
1.The purported decision of the Tribunal is void and null by failing to recognise that the delegate of the Minister made a mistake not to make a decision to refuse the visa when he made a decision to refuse the nomination. He forgot to do so for three months.
2.The decision of the Tribunal is void and null by including my husband Yong Ku Kim into the decision record without any decision made on his application for the visa.
3.My husband Yong Ku Kim applied for the visa twice due to DIMA’s mistake. DIMA did not make a decision on his application and MRT included his name in its decision record.
Chronology
Mr Cramer, appearing for the first respondent, provided a chronology for this matter. I have adopted the chronology for the purposes of this judgment:
12.10.2005Primary applicant (Shin Hee Kwon lodges application for an Educational (Temporary) (Class TH) Subclass 442 Occupational Trainee visa (Occupational Trainee visa).
14.10.2005Best Saving Health Pty Ltd lodges a nomination for occupational training with the primary applicant as nominee.
05.04.2006Nomination by Best Saving Health Pty Ltd is refused.
02.05.2006Primary applicant applies to the Migration Review Tribunal (Tribunal).
18.07.2006Secondary applicant (Yong Ku Kim) lodges separate application for a Class TH visa. Application determined invalid.
18.07.2006Delegate refuses to grant an Occupational Trainee visa to the primary applicant.
16.11.2006Tribunal seeks primary applicant’s comments on eligibility of application.
10.12.2006Primary applicant responds to invitation to comment on eligibility of application.
23.01.2007Tribunal determines it does not have jurisdiction.
Relevant law
The Tribunal decision sets out the relevant law that applies to this decision and I reproduce those provisions:
The Tribunal’s jurisdiction arises if an application is properly made under s347 of the Act for review of an MRT-reviewable decision: s.348 of the Act. Section 338 of the Act and r.4.02 of the Migration Regulations 1994 (the Regulations) set out the various decisions that are MRT-reviewab1e decisions. They include:
· a decision to refuse to grant a non-citizen a visa in certain specified circumstances: s.338(1), (2), (5), (6), (7), (7A)
· a decision to cancel, or not to revoke the cancellation of, a visa in specified circumstances: s.338(3), (3A)
· a decision to refuse to grant a bridging visa or to cancel a bridging visa in specified circumstances: s.338(4)
· a decision under s.93 of the Act us to the assessed score of a visa applicant in specified circumstances: s.338(8); and
· certain decisions relating to temporary business entry sponsorship and nomination: s338(9) of the Act and r.4.02(4) of the Migration Regulations 1994.(CB 47)
Submissions and reasons
The first applicant appeared at a first Court date on 20 March 2007, at which time she was advised that this matter would be listed for a show cause hearing scheduled on 23 April 2007. She was told that she should seek legal assistance in preparation. The first applicant was accompanied to the hearing by the proprietor of Best Saving Health Pty Ltd, who nominated her for the Educational (Temporary) (Class TH) (Subclass Occupational Trainee) visa. This person spoke English and sought leave to explain the circumstances surrounding the application to this Court for judicial review. As there was no objection from Mr Cramer, leave was granted.
The nominator stated that the applicants and the company Best Saving Health Pty Ltd lodged their respective applications to the Department on 14 October 2005. The nominator was notified on 11 April 2006 that its application as an approved occupational training organisation was rejected.(CB 47) The nominator informed the applicants of this outcome and contacted the Department to enquire after the immigration status of the applicants and what course of action they should take. The nominator said that the Department officer he spoke to stated that the applicants could either file an appeal to the Tribunal, or alternatively, leave Australia within 28 days. The nominator claims that based on this information, the applicants filed their Tribunal application on 4 May 2006.(CB 33-39) However, the Tribunal determined that this application was ineligible because, at the time, there was no reviewable Tribunal decision within the meaning of s.338 as required by s.347 of the Act. The delegate’s decision refusing to grant an Occupational Training visa to the applicants was not made until 18 July 2006.(CB 48) I am satisfied that the Tribunal decision as based on this information was a correct interpretation of the Act and that the review application was invalid.
The nominator also made submissions which repeated the second order sought in the application, that the Department reinstate the applicants’ visa to a Bridging A visa. I said to the nominator and the first applicant that the granting of visas is a function of the Department, not the Court. The nominator pursued this issue, saying that the applicants were without a visa, and claiming that the visa had been cancelled at the time of the Department’s decision not to approve the nomination for occupational training. I said that it was highly unlikely that the applicants’ visa would have been withdrawn leaving them unlawful in Australia, and that it was not appropriate for the Court to pursue this further. It would appear that the motivation for raising this issue was that the new visa may have included work restrictions.
The first applicant and nominator were unable to provide any documents to verify the applicants’ migration status. Nor were they able to provide any evidence about the applicants’ migration status when the nominator’s application was refused. However I note that information about their migration status at the time was provided by the Department on 18 July 2006, together with the delegate’s decision.(CB 25-27)
The Tribunal wrote to the applicants on 16 November 2006 clearly setting out the relevant dates in respect of the application and the decision and invited them to respond to these issues by 11 December 2006.(CB 42-43) The applicants responded by facsimile transmission on 11 December 2006:
…I was notified by the nominator that my application for an occupational trainee visa was refused and I myself also confirmed it by looking at the decision record which the nominator showed me. I cannot remember the precise date and time, but it was sometime April 2006. I think I can bring the decision record to MRT on its request…(CB 44)
Documentation in respect of the refusal of the application by Best Saving Health Pty Ltd is not contained in the Court Book. Mr Cramer that he had inquired as to the availability of this material but was informed that the file could not be located. In the absence of such material, I believe the only explanation available is that the correspondence cited by the applicant was the refusal of Best Saving Health Pty Ltd application for approval as an occupational trainer.
Conclusion
I believe that the circumstances in this matter are unfortunate. However, I am satisfied that the first applicant is unable to succeed in any review regarding an occupational training visa as she does not have a nominator, which is a criterion of that visa. Consequently, the application should be dismissed.
The application filed on 1 March 2007 must be dismissed pursuant to r.44.12(1)(a) of the Rules as it does not raise any arguable case for the relief claimed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 May 2007
Corrections
The name of the second applicant is amended to read Kung Joong Kim.
The name of the third applicant is amended to read Il Joong Kim.
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