Park v Minister for Immigration - [2006] FMCA 412

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARK & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 412

MIGRATION – MRT decision – refused temporary business visa – no approval of sponsor – failure to respond to invitation for comments – no error by Tribunal deciding without a hearing – application for judicial review dismissed for absence from hearing – futile to reinstate – application to set aside default order refused.

Federal Magistrates Court Rules 2001, rr.9.03(2), 9.03(3), 16.05(2)(a)
Migration Act 1958 (Cth), ss.359A, 359B, 359C(2), 360, 360(2)(c), 360(3), 363A, 379A(4), 379C(4), 379G

First Applicant:

CHAN YONG PARK

Second Applicant:

WON SUN KIM

Third Applicant:

KUN WOONG PARK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1857 of 2005

Judgment of:

Smith FM

Hearing date:

14 March 2006

Delivered at:

Sydney

Delivered on:

14 March 2006

REPRESENTATION

Counsel for the Applicants:

First and second applicants in person

Counsel for the First Respondent:

Ms C Gray

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The applicants’ application under r.16.05(2)(a) to set aside orders made on 20 January 2006 is refused.
The first and second applicants must pay the first respondent’s costs in the sum of $850 in addition to the amount ordered on 20 January 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1857 of 2005

CHAN YONG PARK

First Applicant

WON SUN KIM

Second Applicant

KUN WOONG PARK

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this proceeding was filed on 14 July 2005 by a firm of solicitors acting for Mr and Mrs Park and their son. The application sought orders by way of judicial review of a decision of the Migration Review Tribunal handed down on 19 December 2003. The Tribunal affirmed a decision of a delegate refusing Mr Park’s application for a Temporary Business Visa Entry (Class UC Visa) which would have permitted the applicants to extend their stay in Australia.
The visa application was made on the basis that Mr Park would be employed by the Sydney Full Gospel Church, and was accompanied by an application for the Minister’s approval of that body as a business sponsor. Under the relevant criteria in the regulations it was necessary for the sponsoring employer to be so approved before Mr Park could qualify for a visa. However, the application by the Church for approval was refused for reasons which do not appear in the papers before me. Due to the absence of an approval, the delegate refused the visa application by Mr Park on 16 April 2003.
The applicants had been assisted in their visa applications by a firm of solicitors, Davidson James and Associates. On 12 May 2003 that firm lodged two applications for review, addressing respectively the refusal of employer sponsorship approval and the applicants’ substantive visa applications. The applicants’ application for review identified their solicitor as their authorised recipient for correspondence under s.379G, and also gave the solicitor’s address as the address to which all correspondence was to be sent.
For reasons which do not appear in the papers before me, the Church subsequently withdrew its appeal, and ceased to support the visa applications of the applicants.
On 24 September 2003, the Tribunal sent an invitation to Mr Park at the address for correspondence notified to the Tribunal, inviting Mr Park to comment on the effect of the withdrawal of the Church’s application for review. This was suggested to be relevant because “without there being an approved business sponsorship, the visa criteria cannot be met”.
It is clear that that invitation to comment under s.359A of the Migration Act 1958 (Cth) was received by the applicants’ solicitor. The Tribunal received a response on 30 September 2003, saying:
We … would inform you that we are unable to contact him.
Mr Park resided in a house provided by the Sponsor, Sydney Full Gospel Church, and according to the Sponsor they moved out of the house without giving any notice to the Sponsor and the Sponsor is not able to contact him either.
In its statement of reasons published on 19 December 2003, the Tribunal was satisfied that the applicant had been invited to comment in accordance with s.359A and 359B. It concluded that, pursuant to s.359C(2), s.360(2)(c) and (3) and s.363A, it had power, and indeed was obliged, to decide the matter without inviting the applicant to a hearing. It said:
8.Where an applicant is invited to comment on information under section 359A and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (subsection 359C(2)). In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A). The Tribunal has found that the applicant did not provide comments within the prescribed period. The Tribunal will therefore proceed to make a decision on the review without taking further action to obtain the comments from the applicant and without inviting the applicant to appear before the Tribunal.
It then concluded:
13.The Tribunal finds that the visa applicants’ proposed employer has not been approved as a business sponsor. The Tribunal finds that the visa applicants do not meet the criteria for Subclass 456 visas, or the criteria for Subclass 457 visas. The Tribunal must therefore affirm the decisions under review.
The application for judicial review in this Court was filed one and a half years after the Tribunal’s decision. The applicants were assisted by a new firm of solicitors, PSK Legal.
No explanation for the delay was provided to the Court, and the Minister has raised an issue as to whether the application should be dismissed for the reason that the delay was unwarranted. However, I do not need to consider the strength of that argument.
In my opinion, the Tribunal’s decision was attended by no doubt as to whether it made a jurisdictional error. I consider that the Tribunal took a correct view of the visa criteria and that its opinion as to the effect of ss.359C(2), 360 and 363A was correct. I can see no argument to the contrary reasonably available to the applicants.
The application filed by the applicants’ solicitors makes, in effect, only one contention: that the applicants were erroneously denied a further opportunity to comment upon the matter raised in the s.359A letter because the Tribunal affirmed the delegate’s decision “without making further attempts to locate and invite the Applicants to comment on the information”. However, no source of such a duty is identified, and, in my opinion, the contention has no substance upon the plain effects of the provisions relied upon by the Tribunal. The Tribunal’s letter was clearly sufficiently served upon Mr Park at his address for service, and it had no further duty as to notification (see ss.379A(4), 379C(4)).
The principal application was returnable at a first court date before me on 10 August 2005, where the applicants were represented by their new solicitor. I directed the filing of additional affidavits and set the matter down for hearing on 20 January 2006.
Two days before the hearing, the solicitors filed a notice of withdrawal, without evidence that they had complied with the requirements of r.9.03(2) and (3) of the Federal Magistrates Court Rules 2001.
When the matter was called on 20 January 2006, a solicitor from the firm of PSK Legal appeared, Mr Kim, and filed an affidavit by his principal, Paul S Kwon, sworn on 16 January 2006. It deposed to a telephone conversation with Mr Park on 19 December 2005, in which Mr Park was informed that the firm would cease to act. The affidavit did not indicate that the applicant had also been informed of the hearing date, but Mr Kim assured the Court that this had happened. In those circumstances, I gave leave to the solicitors to withdraw, and dismissed the application due to the absence of the applicants.
On 9 February 2006, the applicants filed an application under r.16.05(2)(a) seeking to set aside my previous order. It is supported by an affidavit claiming:
14.Unbeknown to me, I was completely unaware that my solicitors ceased to act on our behalf on 18 January 2006, which was 2 days before the Federal Magistrate’s hearing.
15.The solicitors gave me no advance notice of the Federal Magistrates Court hearing date on 20 January 2006, nor did my solicitors give me any advance notice that they were withdrawing their appearance on my behalf.
Mr Park gave additional oral evidence today which was similar in effect, and made additional claims suggesting that the first time that the family heard that a hearing was appointed was on the day of the hearing when they were telephoned by Mr Kwon, but it was too late for them to come to court.
If the applicant, Mr Park, is to be believed, then he may well have a reasonable explanation for his absence. However, I do not need to reach final conclusions about this, since it would still be futile to reinstate the application because it has no prospect of success. I have above explained my reasons for this opinion.
The applicants have not been able to present to me today any submission even attempting to address the issues which would have to be considered by the Court in relation to the validity of the Tribunal’s decision. Their original application failed to raise an arguable ground for review, and my own consideration of the procedures of the Tribunal and its reasons cannot identify an argument allowing any prospect of success.
For that reason, I dismiss the application to set aside my orders of 20 January 2006.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 29 March 2006