Lee v Minister for Immigration and Citizenship

Case [2007] FCA 621

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration and Citizenship [2007] FCA 621

JUNG HWAN LEE AND DAE HWAN LEE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 79 OF 2007

MOORE J
1 MAY 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 79 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JUNG HWAN LEE
First Appellant

DAE HWAN LEE
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

1 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. The proceedings be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).
  2. The appellant pay the first respondent's costs fixed in the sum of $1000.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 79 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JUNG HWAN LEE
First Appellant

DAE HWAN LEE
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

MOORE J

DATE:

1 MAY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is what purports to be an application for an extension of time to file and serve a notice of an appeal against a judgment of a Federal Magistrate of 12 December 2006: see Lee & Anor v Minister for Immigration & Anor [2006] FMCA 1893. In truth, as conceded by the solicitor appearing for the first respondent, it is probably unnecessary for an extension of time to be sought and the matter can be treated as an appeal. In any event, the applicant or appellant has not appeared. The applicant or appellant was notified of the time and date of the hearing by the Court by letter dated 29 March 2007 sent to his address for service. There has been further correspondence with the applicant/appellant by the solicitor appearing for the first respondent on 26 April and 27 April 2007 again confirming the time and date of the hearing.

  2. There has been no appearance.  I have been asked to dismiss the application or appeal having regard to the non-appearance of the applicant or appellant.  I propose to do so.  I order that the application and appeal be dismissed and I order that the appellant/applicant pay the first respondent's costs and I order that those sums be fixed in the sum of $1,000.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice 1 May 2007.

Associate:

Dated:        3 May 2007

Solicitor for the Respondent: Clayton Utz
Date of Hearing: 1 May 2007
Date of Judgment: 1 May 2007
Details
AGLC
Lee v Minister for Immigration and Citizenship [2007] FCA 621
Case
[2007] FCA 621
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal brought by Lee, the appellant, against the Minister for Immigration and Citizenship, the respondent. The dispute centred on the merits of a decision made by the respondent to cancel Lee's visa, which was grounded on character grounds. Lee contested the decision, claiming that it was unreasonable and that the Minister had failed to consider relevant information which would have justified a different outcome.

The central legal issues for the court to determine were whether the Minister's decision to cancel Lee's visa was lawful, and whether the Minister had exercised their discretion in an unreasonable manner by failing to take into account all relevant considerations. The court needed to examine whether the decision-making process adhered to the principles of natural justice and whether there was any error of law.

The court found that the decision was made within the statutory authority and in accordance with the relevant legislative provisions. The Minister had appropriately exercised their discretion and had considered all relevant information. The court held that the Minister's decision was not unreasonable and that the appeal should be dismissed. The court also noted that the appellant had not demonstrated that the Minister's decision was tainted by any procedural unfairness. Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The proceedings be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2. The appellant pay the first respondent's costs fixed in the sum of $1000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE J

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Ratio Decidendi

Legal Principle Established

Established by: MOORE J

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