Park v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 231
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Park v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 231
File number(s): SYG 1001 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 March 2024 Catchwords: MIGRATION- Application for an adjournment– application refused Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.104 Cases cited: Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 Division: Division 2 General Federal Law Number of paragraphs: 8 Date of last submission/s: 5 March 2024 Date of hearing: 5 March 2024 Place: Parramatta Counsel for the Applicants: Mr Berg Solicitor for the Applicants: Alex Yun Lawyers Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1001 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JEE YEA PARK
First Applicant
SEUNG HO LIM
Second Applicant
YOSEOP LIM (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMIINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The application for adjournment is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(As revised from the transcript)JUDGE D HUMPHREYS
INTRODUCTION
This matter was listed before me at relatively short notice, in late February, in order to fill a hole that had occurred in my listing docket. The matter is listed before me today on 5 March 2024, and it is approximately two weeks after the notice of listings were sent out. It is not necessary to deal with the grounds of the application at this point, however, at 3:45 pm, or 3:25 pm on Monday 4 March, being the day before the matter was listed for hearing, the Court received the following email, which I will read onto the record:
“Dear Associate, we refer to the above proceedings, which are listed for final hearing before His Honour tomorrow, 5 March ’24 at 2 pm. We write to foreshadow that the first respondent will make an oral application at tomorrow’s listing to adjourn the final hearing, pending the determination of proceedings SYG1178/2019, Kiridaran v Minister for Immigration, Citizenship, and Multicultural Affairs. In relation to the proposed application, the first respondent
1. accepts that the delegate’s notification letter at the Court Book pages 58 to 67 is materially indistinguishable from the notification letter found not to satisfy section 66(2)(d)(ii) of the Migration Act 1958 in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434, being a judgment of Markovic J.
2. is of the view that Sandor is wrongly decided, and is pressing that position in Kiridaran,
3. has requested an expedited hearing in Kiridaran. The first respondent will submit the proposed adjournment will involve an appropriate exercise of the court’s discretion.
Further, we are instructed the first respondent has written similarly to the court in proceedings SYG2212/2021, SYG1416/2022, and MLG1525/2018. We’re pressing that those proceedings be held in abeyance behind Kiridaran.
For his Honour’s reference, we understand the applicants do not consent to the proposed adjournment of the proceedings; the solicitors for the applicant is copied into this email.
APPLICATION FOR ADJOURNMENT
The application for the adjournment is opposed by the applicant. It is noted that the applicants are currently on a Bridging Visa A (Subclass 010) ( “ bridging visa”) , and they currently do not have work rights as a result of that bridging visa. In order for them to obtain work rights, they would need to make an application to the Minister. That application would have to be approved on the basis that the applicants were suffering hardship. The situation is that there were, previously, in those three matters that I made reference to, previous applications for adjournment, pending determination in the matter of Minister for Immigration, Citizenship and Multicultural Affairs v Pawanpreet Singh & Anor in the Federal Court, case number WAD176/2023.
I am advised, from a printout of the Commonwealth Courts portal, that that particular appeal was discontinued on 13 November 2023. I am advised that the Minister has sought that the proceedings that I mentioned previously should now be further held in abeyance, behind Kiridaran v Minister for Immigration, Citizenship and Multicultural Affairs. When I examined the Courts portal, in terms of the matter of Kiridaran, whilst it may well be the case that expedition has been requested, that matter has not currently been allocated a hearing date. When it will be allocated a hearing date is a matter that will be determined, however, it may well be some considerable period of time before it is allocated a hearing date, noting the number of matters currently in the Court’s migration docket, being some 16,500, as at the end of the last financial year.
In terms of the particular matters that have been put to me, it was noted that this matter was commenced in 2020, and that there has been no application for expedition, and that there are a couple of other issues in relation to the grounds of judicial review are not sufficient to cover the matter or the issues that were raised in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“ Sandor”) , and they would still have to be argued.
The difficulty that I have with this letter, firstly, if I was to adjourn the matter, it would have to be on the basis of a costs order against the Minister. Secondly, in terms of the prejudice to the applicants, I am concerned that, because of their current visa status, that being a bridging visa, that they do not have work rights or otherwise, that might otherwise be available.
To adjourn this matter would be to continue prejudice against them, on the basis that they are unable to work, and that their immigration status is uncertain. In terms of the efficacy of their application to the Court, the Minister quite properly concedes that the notification that was given to the applicants by the Tribunal is affected by precisely the same error that was identified by Markovic J in Sandor. To adjourn the matter, against the opposition of the applicants, in my view, would be inappropriate, noting also that the overarching purpose of the Court, as set out in r 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) is as follows:
"The overarching purpose of these rules, as provided by Section 190 of the Act, is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible", and I emphasise the word, "quickly."
From the Court’s point of view, the matter had been called on for hearing, the applicant is entitled to have the matter heard, and presumably, noting the concession of the Minister, to have their remedy. That could well result in the matter simply being returned to the Tribunal, and it starting all over again, at that level. However, that is their choice if they would prefer that that occur, rather than the matter be adjourned for an unknown period of time, while the matter of Kiridaran, first of all, awaits allocation of a judge and hearing, and second of all, a decision, which may, or may not, provide an appropriate vehicle for the Minister to appeal what they say is a wrong decision in Sandor.
CONCLUSION
Well, whether or not the Minister thinks that Sandor is wrong or not, the answer is, while it is on the books, and not subject to higher authority overturning it, I am bound by it. In my view, it would be inappropriate to continue to adjourn the matter. In my view, the prejudice which would flow to the applicants, as compared to the prejudice that might flow to the Minister – if they get a decision in Sandor in the manner that they want, and if they are then able to prosecute an appeal before the Full Federal Court in the manner that they want, is such that the application for an adjournment should be refused.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 12 March 2024
SCHEDULE OF PARTIES
SYG 1001 of 2020 Applicants
Fourth Applicant:
SAEUN LIM
Fifth Applicant:
HAEKYO LIM
Sixth Applicant:
EHWA LIM
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