Lee v Minister for Immigration and Citizenship

[2008] FCA 1919

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration and Citizenship [2008] FCA 1919

HYUK KYU LEE v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 1920 of 2008

TAMBERLIN J
12 DECEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1920 of 2008

BETWEEN: HYUK KYU LEE
Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	12 DECEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1920 of 2008

BETWEEN: HYUK KYU LEE
Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:	TAMBERLIN J
DATE:	12 DECEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from refusal of an application for leave to appeal from the judgment of Raphael FM, who dismissed an urgent application by Mr Lee to restrain the Minister from exercising his powers under s 198(6) of the Migration Act 1958 (Cth) (“the Act”) removing him from immigration detention and returning him to his home in Korea. The applicant seeks the injunction so that his application can be heard before the Federal Magistrates Court in February 2009, on the date set down by Cameron FM at a recent directions hearing.

2. The matter has a very long history, which is set out in a letter dated 9 December 2008 from the Australian Government Solicitor to Mr Lee, which pointed out that he might make an application to the Federal Magistrates Court for orders preventing his removal, but indicating that the Minister would object to such an application.

3. I have heard the applicant’s submissions and those presented by Mr Markus on behalf of the Minister. I am not persuaded that any ground has been put before me which would persuade me that in any way the Magistrate has made an error of law or that there is any ground on which to set aside the decision of the learned Magistrate.

4. For the reasons given by the Magistrate, and having regard to the accepted principles set out in Dart Industries Incorporated v Décor Corporation Pty Limited (1991) 33 FCR 397, I am not persuaded that the decision below was attended by sufficient doubt to warrant its being reconsidered and I do not think that substantial injustice would result if leave were refused, having regard to the long history and substance of the matter. Accordingly for these reasons I dismiss the application with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:       12 December 2008

Counsel for the Appellant: Mr A. Markus

Date of Hearing:	12 December 2008
Date of Judgment:	12 December 2008