Park v Minister for Immigration - [2008] FMCA 856

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARK & ORS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 856

MIGRATION – Review of Migration Review Tribunal decision – cancellation of a business visa – Tribunal found that it had no jurisdiction – review application made within time but withdrawn – second review application made out of time – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.127, 140, 476

Man Chi Christine Chung v Minister for Immigration [2006] FCA 1317
MZXOT v Minister for Immigration [2008] HCA 28
SZJQC v Minister for Immigration [2007] FMCA 505

First Applicant:

HAK SUN PARK

Second Applicant:

IN HEE KIM

Third Applicant:

JI HAE PARK

Fourth Applicant:

JI SU PARK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 682 of 2008

Judgment of:

Driver FM

Hearing date:

24 June 2008

Delivered at:

Sydney

Delivered on:

24 June 2008

REPRESENTATION

The Second Applicant appeared by telephone

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), In Hee Kim is appointed as litigation guardian of Ji Su Park, and In Hee Kim is relieved of the obligation of filing an affidavit of consent or of notifying the respondents of her appointment.
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 682 of 2008

HAK SUN PARK

First Applicant

IN HEE KIM

Second Applicant

JI HAE PARK

Third Applicant

JI SU PARK

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (“the Migration Review Tribunal”). The decision was signed on 13 February 2008 and sent to the applicants the following day. The Tribunal decided that it did not have jurisdiction to review the decision of the Minister’s delegate, which was a decision to cancel the principal applicant’s visa.
Background facts relating to this matter are conveniently summarised in the Minister’s written submissions filed on 13 June 2008. I adopt as background paragraphs 2.1 through to 2.8 of those submissions for the purposes of this judgment:
On 15 July 2000 the applicants were granted Subclass 457 (Business (Long Stay)) visas. The primary applicant, Hak Sun Park, was sponsored by Bakers Delight / East West Group Pty Limited. The remaining applicants were granted visas on the basis that they were members of the primary applicant’s family unit.
On 9 September 2002 a delegate of the Minister:
a)notified the primary applicant that he was considering cancelling the primary applicant’s visa (affidavit of Ms Warner Knight filed 5 June 2008 at 4);
b)conducted an interview with the primary applicant (affidavit of Ms Warner Knight filed 5 June 2008 at 4);
c)made his decision to cancel the visa (affidavit of Ms Warner Knight filed 5 June 2008 at 6-7); and
d)provided written notice of that decision to the primary applicant by handing him a copy of that decision (affidavit of Ms Warner Knight filed 5 June 2008 at 9).
The primary applicant’s visa was cancelled due to a breach of condition 8107 which provided that he must not change employer or occupation in Australia. The visas held by the remaining applicants were cancelled by operation of law: s.140 Migration Act 1958 (Cth) (“the Migration Act”).
On 10 September 2002 the applicants filed an application for review of that decision: affidavit of Ms Warner Knight filed 6 June 2008 at 22.
On 14 September 2002 the applicant requested the cancellation of that application: affidavit of Ms Warner Knight filed 6 June 2008 at 11.
On 17 August 2007 the applicant filed a further application for review: affidavit of Ms Warner Knight filed 5 June 2008 at 17.
On 3 October 2007 the Tribunal invited the applicant to comment on the fact that his application was out of time: affidavit of Ms Warner Knight filed 5 June 2008 at 27.
In its decision dated 13 February 2008 the Tribunal decided that the applicants’ application for review was not a valid application and that therefore the Tribunal had no jurisdiction to review the delegate’s decision. The decision was based on findings that:
a)The delegate’s decision notice complied with s.127 and reg 2.55(3)(a).
b)The primary applicant was properly notified of the delegate’s decision on 9 September 2002.
c)The prescribed period of 7 working days within which the application for review could be lodged ended on 19 September 2002.
d)The application for review was not received by the Tribunal until 17 August 2007.
These proceedings began with a show cause application filed on 20 March 2008. That application asserts jurisdictional error by the Tribunal on the basis that the Tribunal did not provide the applicants with an opportunity to present their case to it. The application also asserts that the Minister did not properly notify the cancellation decision to the first applicant. The application is supported by an affidavit which contains legal assertions. I received that affidavit as a submission. I received as evidence two affidavits by Elizabeth Warner Knight made on 5 and 6 June 2008. I also have before me three letters from the Minister’s solicitors to the first applicant at his address of service providing copies of those affidavits and the Minister’s written submissions.
The applicants did not appear which this matter was called today. The Court was successful in contacting the first and second applicants by telephone. They each requested an adjournment on the basis that the first applicant claimed to be unwell. I refused that request because there was no medical evidence supporting the claim and neither the Court, nor the Minister’s solicitors had been informed in advance of the hearing of any problem. The applicants conceded that they had not sought any medical attention for the first applicant up to the time of the hearing.
I offered to hear the applicants by telephone. The first applicant gave evidence over the telephone that he felt too ill to speak. He authorised his wife, the second applicant, to speak on his behalf. She agreed to do so. She made allegations concerning her husband’s decision to withdraw their first application to the Tribunal. Those assertions amount to an allegation that Mr Park was put under duress. There is no evidence to support those assertions.
I directed on 10 April 2008, that evidence in this matter was to be provided by way of affidavit. I gave the applicants until 28 May 2008 to file affidavit evidence. The second applicant asserts that a friend, who has been assisting her and her husband, was supposed to file additional material, but nothing has been filed.
I accept from Ms Warner Knight’s affidavit and the Tribunal decision that two review applications were made to the Tribunal. The first application was made within time but, on 14 September 2002, for some unknown reason Mr Park wrote to the Tribunal requesting that that application be cancelled. The Tribunal wrote to Mr Park on 2 October 2002 to confirm that that application had been withdrawn.
Approximately five years later a second review application was sent to the Tribunal by these applicants. The applicants asserted that the cancellation decision was not properly notified, but I accept the Minister’s submission that the Tribunal was correct in rejecting that contention. The second applicant asserted orally today that Mr Park was not informed of his rights of review when informed of the cancellation decision. I do not accept that assertion. Mr Park must have been aware of his rights of review because he exercised them in 2002.
To the extent that the applicants seek a review of the cancellation decision, this Court has no jurisdiction. That decision is a “primary decision” as defined by s.476 the Migration Act and only the High Court of Australia has jurisdiction to review it: MZXOT v Minister for Immigration [2008] HCA 28.
In my view, the Tribunal was correct in finding that the first applicant was lawfully notified of the cancellation decision and that the Tribunal had no jurisdiction because the second review application was not made within the prescribed time period. The Tribunal has no discretion to extend that time period. I have, on a number of occasions, criticised that lack of discretion[1]. However, I would have to add that in this case, even if the Tribunal had had a discretion, it is difficult to see how it could have exercised it favourably after a delay of five years.
[1] Man Chi Christine Chung v Minister for Immigration [2006] FCA 1317; SZJQC v Minister for Immigration [2007] FMCA 505
I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed costs should follow the event. The Minister seeks an order for costs in the sum of $5,000. That is consistent with the court scale. The Minister’s actual costs exceed $7,000. Ms Kim was concerned to ensure that no more than $5,000 would be payable. She did not otherwise make any submissions on costs.
The first applicant is principally responsible for the application and his wife appeared by telephone on his behalf today. The third and fourth applicants have taken no active part in the proceedings and the fourth applicant is a minor.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 June 2008