Lee v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 80

MIGRATION – Bridging visas – visa cancellation – refusal of visa – review of Migration Review Tribunal decisions – Court not empowered to review decisions of ministerial delegates – Tribunal had no jurisdiction as application for review filed out of time – in judicial review proceedings, applicant cannot review Tribunal’s findings of fact – proceedings futile.

Migration Act 1958, ss.127, 140, 189, 338, 347, 359A, 360, 476, 477
Migration Regulations 1994, regs.2.45, 2.55, 4.10, cl.050.212 of sch.2, cl.050.411 of sch.2

Lee v Minister for Immigration & Citizenship [2008] FMCA 1734
Lee v Minister for Immigration & Citizenship [2008] FMCA 1675
Lee v Minister for Immigration & Citizenship [2008] FCA 1919

Applicant: HYUK KYU LEE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2360 of 2008

Judgment of: Cameron FM

Hearing date: 4 February 2009

Date of Last Submission: 4 February 2009

Delivered at: Sydney

Delivered on: 16 February 2009

REPRESENTATION

The Applicant appeared in person (by telephone)

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The time for the commencement of these proceedings be extended to 11 September 2008.

2. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2360 of 2008

HYUK KYU LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant arrived in Australia in 1996 on a subclass 560 student visa. Thereafter, and until the time of his deportation to South Korea on 16 December 2008, he resided here on a series of student visas and bridging visas and, for several periods, as an illegal non-citizen.

2. Following the cancellation of the applicant’s most recent bridging visa on 24 June 2008, he was taken into detention at the Villawood Immigration Detention Centre (“Villawood”). After having been taken into detention, on 2 July 2008 the applicant made a further application for a bridging visa. This application was refused by a delegate of the first respondent (“Minister”). The applicant’s applications to the Migration Review Tribunal (“Tribunal”) for review of those departmental decisions cancelling his bridging visa and refusing to grant another one were unsuccessful and it appears from his application filed on 11 September 2008 and from his affidavit filed the same day that he has applied to this Court for judicial review of those two Tribunal decisions.

3. For the reasons which follow, the application will be dismissed.

Background facts

Application for bridging visa made on 23 June 2008

1. On 23 June 2008 the applicant was granted a Bridging E (Class WE) Subclass 050 visa valid until 24 June 2008 and subject to the following conditions, amongst others:

   a)8510 (present valid passport); and

   b)8511 (present valid ticket).

2. On 24 June 2008 the applicant presented at the compliance counter of the Minister’s department without a valid passport and without a valid ticket whereupon his visa was cancelled by a delegate of the Minister.…