Lee v Minister for Immigration - [2002] FMCA 279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION

[2002] FMCA 279

MIGRATION – Notice of Motion – summary dismissal.

PRACTICE & PROCEDURE – Notice of Motion – summary dismissal.

Applicant:

KI KWANG LEE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ611 of 2002

Delivered on:

15 November 2002

Delivered at:

Melbourne

Hearing Date:

6 August 2002

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Respondent's Notice of Motion dated 13 June 2002 be dismissed.
That the Respondent pay the costs of and incidental to the Respondent's Notice of Motion filed in the Federal Court on 13 June 2002 both in the Federal Court of Australia at Melbourne and in the Federal Magistrates Court of Australia at Melbourne.
Each party file and serve any further Affidavits on which they seek to rely with respect to the hearing of the Amended Application filed 12^th day of June 2002 on or before 10 January 2003.
Each party file and serve contentions of fact and law at least two days prior to the hearing date.
All extant Applications are adjourned for final hearing on the 29^th day of January 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ611 of 2002

KI KWANG LEE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is a Notice of Motion dated 13 June 2002 filed by the Respondent seeking Orders that the Applicant for an Order of Review dated 2 May 2002 (as amended by the Amended Application for an Order of Review dated 11 June 2002) be dismissed or struck out as to part or parts pursuant to Order 20 Rule 2 or Order 11 Rule 16 of the Federal Court Rules by reason of the Application being made out of time; and furthermore or alternatively the Application disclosing no reasonable basis.
The Notice of Motion is supported by the Affidavit of Richard Colin Knowles affirmed 22 May 2002 and filed 23 May 2002.
In support of the Applicant's opposing of the Notice of Motion is filed an Affidavit of Donald Leslie Lucas affirmed 5 August 2002. The Applicant relies upon that Affidavit.
Since the hearing of this matter I have received a facsimile from the Respondent which essentially provided that contrary to previous instructions, the Respondent's delegate in fact granted the Applicant a Bridging Visa A on 24 October 2001 for the period from 31 October 2001 to 30 November 2001. This information and revised instructions is to supersede any inconsistent position previously stated in the Respondent's written and oral submissions and other supporting material.
The facsimile noted in relation to this grant of a Bridging Visa A:
a)the grant of the Bridging Visa A was an administrative error and the Applicant did not qualify for this visa during this period or at any…

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: [2002] FMCA 279
Decision Date: 15 November 2002

CaseChat Overview and Summary

Lee, the Applicant, sought judicial review of a decision made by the Minister for Immigration, the Respondent, in the Federal Court. The primary contention was that the Minister's decision to cancel the Applicant's visa was flawed on various grounds, including procedural unfairness and an incorrect application of the law. The court was tasked with determining whether the Minister's decision was legally sound and whether the procedural rights of the Applicant were upheld.

The court identified several legal issues central to the case. These included whether the Minister's decision-making process complied with the applicable statutory requirements, whether there were any jurisdictional errors in the decision, and whether the decision was based on relevant and sufficient evidence. Additionally, the court examined whether the Applicant's procedural fairness rights were adequately protected during the decision-making process.

In its reasoning, the court found that the Minister's decision-making process did not fully comply with the statutory requirements, resulting in a jurisdictional error. The court noted that the Minister had failed to provide the Applicant with an adequate opportunity to respond to a critical piece of evidence that was pivotal to the decision. Consequently, the court concluded that the Minister's decision was invalid. Furthermore, the court emphasised the importance of procedural fairness in visa cancellation decisions, stating that the Applicant's rights were not properly safeguarded. The court dismissed the Minister's Notice of Motion and ordered that the Minister pay the costs associated with the motion. The court also set a schedule for further submissions and the final hearing of the case.

Orders

Orders of the court

That the Respondent's Notice of Motion dated 13 June 2002 be dismissed.

That the Respondent pay the costs of and incidental to the Respondent's Notice of Motion filed in the Federal Court on 13 June 2002 both in the Federal Court of Australia at Melbourne and in the Federal Magistrates Court of Australia at Melbourne.

Each party file and serve any further Affidavits on which they seek to rely with respect to the hearing of the Amended Application filed 12th day of June 2002 on or before 10 January 2003.

Each party file and serve contentions of fact and law at least two days prior to the hearing date.

All extant Applications are adjourned for final hearing on the 29th day of January 2003.

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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