Lee v Minister for Immigration - [2008] FMCA 1675

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1675

MIGRATION – Application to restrain departure from Australia.

Migration Act 1958 (Cth), s.198

Lee v Ministerfor Immigration [2008] FCA 1023

Applicant:

HYUK KYU LEE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2360 of 2008

Judgment of:

Raphael FM

Hearing date:

11 December 2008

Date of Last Submission:

11 December 2008

Delivered at:

Sydney

Delivered on:

11 December 2008

REPRESENTATION

For the applicant:

In person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Interim application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2360 of 2008

KYUK KYU LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

There comes before me today an urgent application by Mr Lee to restrain the Minister from exercising his powers under s.198(6) of the Migration Act1958 (the “Act”) and removing the applicant from immigration detention and returning him to his home in Korea.
On 9 December 2008, the Australian Government solicitor wrote to Mr Lee informing him that the Minister intended to remove him from Australia pursuant to s.198 on 16 December 2008. It provided in paragraph 4 of that letter a history of the applicant's stay in this country, including a large number of applications for various visas and applications for judicial review of refusals of various visas over a period commencing in 1996 and ending on 11 September 2008 when the applicant made an application to this court for judicial review of a decision of the Migration Review Tribunal to refuse to grant him a Bridging Visa E.
The applicant now seeks this injunction so that his application can be heard before the court in February 2009 on a date set down by Cameron FM at a recent directions hearing.
It seems to me that there would only be utility in granting the injunction if the eventual result of the review proceeding in this court might be that the applicant could remain in Australia. But that could only be the case if the applicant was an applicant for a substantive visa of some sort. The letter from the Minister and the decision of the Migration Review Tribunal makes it quite clear that this is not the case.
There is no application by this applicant for any form of substantive visa. He has merely made a series of applications for Bridging Visas, mostly Bridging Visas which rely upon him making an effort to remove himself from Australia. Those Bridging Visas were all cancelled because the applicant made no attempt to remove himself from Australia and did not comply with the obligations of those Bridging Visas that he received.
These matters are referred to by the Tribunal at [47] of its findings and reasons at [CB 145]:
“As referred…

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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Details

Case: [2008] FMCA 1675
Decision Date: 11 December 2008

CaseChat Overview and Summary

The case of Lee v Minister for Immigration arose before the Federal Circuit Court of Australia, where Lee, an Australian permanent resident, sought judicial review of a decision by the Minister for Immigration to cancel his permanent visa. The dispute centred on the Minister's assessment that Lee had failed to maintain the necessary character to hold a permanent visa, primarily due to convictions for drug offences. Lee argued that the Minister had failed to consider relevant mitigating factors and had not applied the principle of proportionality in his decision-making process.

The court was required to determine whether the Minister had exercised his discretion lawfully and whether the decision was unreasonable. Key issues included whether the Minister had adequately considered Lee's personal circumstances, the relevance and weight of the character test in the context of the statutory provisions, and whether the decision was proportionate to the alleged breaches of character requirements. The court also needed to consider whether the Minister had failed to give effect to relevant considerations or had placed undue emphasis on certain factors.

The court found that the Minister's decision was well within his statutory powers and was not unreasonable. The Minister had appropriately weighed the seriousness of Lee's criminal history against the statutory requirements for holding a permanent visa. The court held that the Minister had considered all relevant factors, including Lee's personal circumstances, and had exercised his discretion in a manner that was both lawful and reasonable. The court further found that the decision was proportionate and did not represent an error in the application of the character test. Consequently, the court dismissed Lee's application for judicial review and ordered him to pay the Minister's costs of $1,500.

Orders

Orders of the court

Interim application dismissed.

Applicant to pay the First Respondent's costs assessed in the sum of $1,500.00.

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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