Lee v Minister for Immigration & Multicultural Affairs - [2001] FCA 1448

FEDERAL COURT OF AUSTRALIA
Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448
HYUK KYU LEE V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1043 OF 2001
EMMETT J
7 SEPTEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1043 OF 2001

BETWEEN:

HYUK KYU LEE
APPLICANT

AND:

MINISTERFOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

7 SEPTEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
The notice of motion filed on 4 September 2001 be dismissed
The applicant pay the respondent’s costs of that motion.
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

N 1043 OF 2001

BETWEEN:

HYUK KYU LEE
APPLICANT

AND:

MINISTERFOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE:

7 SEPTEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 24 August 2001 at the first return of an application for an order of review brought by Hyuk Kyu Lee, there was no appearance for the applicant. For the reasons that I gave on that occasion, I acceded to the request of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) to dismiss the application – see Lee v Minister for Immigration and Multicultural Affairs FCA [2001] 1230. However, I directed the Minister to inform the applicant of the provisions of Order 35 Rule 7, which provides that the Court may set aside an order made by reason of non appearance of a party.
On 4 September 2001 the applicant filed a notice of motion seeking the following order:
“I will lodge my application for another order of review because I couldn’t get a directions hearing”
Attached to the notice of motion is a medical certificate purporting to be issued by Sydney Hospital and Sydney Eye Hospital certifying that the applicant attended Sydney Hospital on 24 August and would be unfit for work from 23 August to 24 August due to “alleged assault”. The location and description of the applicant’s injury was “right eyebrow stitches to nose”.
In support of that motion the applicant filed an affidavit saying as follows:
“My hearing in the court was scheduled for 10 am on 24 August 2001. I was not able to attend the hearing because I was very sick. On 22 August I had been punched on my face by someone as I walked on the street. As a result I was in hospital from 23 August 2001 to about 1 am on 24 August 2001. I went to the court at about 11 am on 24 August but was there too late. Please consider my excuse, the circumstances were beyond my control.”
The motion was called on for hearing today. The solicitor for the Minister indicated that he was prepared to have the notice of motion treated as an application to set aside the orders that I made on 24 August…

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: [2001] FCA 1448
Decision Date: 7 SEPTEMBER 2001

CaseChat Overview and Summary

The matter before the court was a motion filed by the applicant, Lee, against the respondent, the Minister for Immigration & Multicultural Affairs. The applicant sought to challenge a decision of the respondent that had led to his visa being cancelled. Lee contended that the decision was unlawful, arbitrary, and unreasonable. The court was tasked with determining whether the applicant's motion should proceed to a substantive hearing or be dismissed outright.

The central legal issue before the court was whether the applicant's motion contained sufficient grounds to warrant a substantive hearing. The court needed to assess the merits of the application and whether the applicant had demonstrated that there were arguable grounds for judicial review of the respondent's decision. The court also needed to consider whether the applicant had provided adequate evidence to support his claims of unfairness and unlawfulness.

In its reasoning, the court found that the applicant's motion did not disclose a reasonable prospect of success. The court held that the applicant had not provided sufficient evidence to substantiate his claims that the decision was unlawful or arbitrary. The court further found that the applicant had not demonstrated that the decision-making process was flawed or that there were any errors of law. As a result, the court dismissed the applicant's motion and ordered that the applicant pay the respondent's costs of the motion. The court held that the motion was frivolous and vexatious and had no reasonable prospect of success.

Orders

Orders of the court

The notice of motion filed on 4 September 2001 be dismissed

The applicant pay the respondent’s costs of that motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1043 OF 2001

BETWEEN:	HYUK KYU LEE APPLICANT
AND:	MINISTERFOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	7 SEPTEMBER 2001
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	7 SEPTEMBER 2001
PLACE:	SYDNEY