Lee v Minister for Immigration - [2006] FMCA 1893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1893

MIGRATION – Review of decision by Migration Review Tribunal – whether applicant’s nominator for occupational trainee visa should have been approved – whether Migration Review Tribunal should have made further enquiries of nominator.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359; 360; 360A; 361; 362B; 474; pt.8 div.2
Migration Regulations 1994, rr.442.222; 442.223; sch.2

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32

First Applicant:

JUNG HWAN LEE

Second Applicant:

DAE HWAN LEE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG2178 of 2006

Judgment of:

Emmett FM

Hearing date:

12 December 2006

Date of last submission:

12 December 2006

Delivered at:

Sydney

Delivered on:

12 December 2006

REPRESENTATION

The First Applicant appearing on behalf of both Applicants

Counsel for the Respondent:

Ms R. Francois

Solicitors for the Respondent:

Ms Z. Brauer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2178 of 2006

JUNG HWAN LEE

First Applicant

DAE HWAN LEE

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 6 June 2006 and handed down on 26 June 2006.
The first named applicant was born on 8 October 1985 and is from Korea (“the Applicant”). The second named applicant is the Applicant's brother and his application is dependent on the application of the Applicant.
On 21 April 2005, the Applicant lodged an application for an Educational Temporary (Class TH) Visa Sub-Class Occupational Trainee Visa 442 with the Department. In support of that application, a Nomination for Occupational Trainee form was completed by the Applicant's nominator in respect of details of the proposed training in Australia. The criteria to be satisfied at the time of the delegate's decision is set out in Sch.2 of the Migration Regulations 1994, relevantly, criterion 442.222 and 442.223 as follows:
“442.222 (1) Except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister.
(2) The reference in subclause (1) to occupational training to be provided by the Commonwealth includes occupational training to be provided by:
(a) a body corporate incorporated for a public purpose by an Act or regulations made under an Act; or
(b) an authority or body, not being a body corporate, established for a public purpose by, or under, an Act or regulations made under an Act.
442.223 The Minister is satisfied:
(a) that the occupational training that is proposed:
(i) is workplace-based; and
(ii) will give…

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.

Keep reading for free

Create a free CaseChat account to read Lee v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FMCA 1893
Decision Date: 12 December 2006

CaseChat Overview and Summary

In Lee v Minister for Immigration, the applicants, Jung Hwan Lee and Dae Hwan Lee, sought judicial review of a decision by the Migration Review Tribunal affirming the Minister's refusal to approve their nominator for an Occupational Trainee Visa. The applicants argued that the Tribunal should have made further enquiries of the nominator and that it was unfair for the decision to be based on information provided by the nominator. The Federal Magistrates Court considered the statutory obligations of the Tribunal and whether it had made any errors in the exercise of its discretion. The court found that the Tribunal had not erred in its decision and that it had properly exercised its discretion to proceed without the applicants' presence. The court concluded that the Tribunal's decision was not affected by jurisdictional error and that the application for judicial review should be dismissed.

The primary legal issue in this case was whether the Migration Review Tribunal should have made further enquiries of the applicants' nominator in regard to their visa application. The applicants argued that the Tribunal had a duty to seek further information from the nominator and that it was unfair for the decision to be based on information provided by the nominator. The court considered the relevant statutory provisions and relevant case law and found that the Tribunal was not under a duty to obtain further material or make enquiries on behalf of an applicant, although it may do so. The court found that the Tribunal had properly exercised its discretion to proceed without the applicants' presence and that the Tribunal's decision was not affected by jurisdictional error.

The Federal Magistrates Court held that the Migration Review Tribunal had not made any errors in its decision and that the applicants' complaints did not demonstrate any error on the part of the Tribunal. The court found that the Tribunal had complied with its statutory obligations in inviting the applicants to comment upon the information that would form part of the reason for affirming the decision under review and in explaining its relevance. The court also found that the Tribunal had properly exercised its discretion to proceed in the absence of the applicants and that its findings and conclusions were open to it on the material before it. The court concluded that the Tribunal's decision was not affected by jurisdictional error and that the application for judicial review should be dismissed.

The Federal Magistrates Court dismissed the application for judicial review and ordered that the first respondent, the Minister for Immigration, be entitled to costs fixed in an amount of $4200.

Orders