Park v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2024] FedCFamC2G 233
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Park v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2024] FedCFamC2G 233
File number(s): SYG 1001 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 March 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal - Temporary Activity visa – Tribunal found that there was no jurisdiction to review the application – judicial review of the Tribunal’s decision – application allowed Legislation: Migration Act 1958 (Cth) ss 66(2)(d)(ii), 490D(2) Cases cited: Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 Division: Division 2 General Federal Law Number of paragraphs: 10 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
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The application is allowed.
2.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.A writ of certiorari quashing the decision of the Administrative Appeals Tribunal.
4.A writ of mandamus directed to the Administrative Appeals Tribunal, requiring them to determine the applicants' application according to law.
5.The first respondent to pay the first applicant's costs fixed in the amount of
$8371.30.
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
The application relates to by the first applicant, being Jee Yea, Park, as the primary applicant, along with her five dependent family members, for a Subclass 408 Temporary Activity (Religious work) visa applications (“the visa”).
The initial application for the visa was refused on or about 2 April 2019. The applicants lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for a merits review. There were issues, at the time of lodging their review at the Tribunal, with financial hardship. They were advised that they could apply for a review for a reduced fee.
On 3 April 2019, there was email correspondence from the Tribunal, acknowledging their applicant review being accepted and they would be notified in relation to various matters.
On or about 18 April 2019, the applicant’s fee reduction request was sent. The Tribunal officer overseeing the applicant’s fee reduction request sent another email, stating that the fee reduction request had been refused. The applicants allege that they never received a copy of the email. They were adamant that, had they been asked to provide information at that time, they would have done so.
There was no further correspondence from the Tribunal until 6 January 2020, when the Tribunal determined to deal with the matter and found against the applicants on the basis that there was no jurisdiction to review that application because they had not provided the correct fee.
The Minister, in written submissions, concedes the delegate’s notification letter, at Court Book [58] to [67], is materially indistinguishable from the notification, found to not satisfy s66(2)(d)(ii) of the Migration Act 1958 ( Cth) ( “ the Act”) , as found in the matter of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“ Sandor”), which I will set out below.
However, the Minister makes a formal submission that Sandor is, plainly, wrong. The Minister previously sought to have this matter adjourned pending the hearing of a matter in this Court of Kiridaran v Minister for Immigration, Citizenship and Multicultural Affairs. However, I rejected that application on the basis that the applicants were entitled to their remedy. I have read Markovic J’s judgment in the matter of Sandor. I am satisfied that the concession has been properly made that the notification letters were in the same manner as those found wanting in Sandor.
In my view, I am bound by Sandor, noting the concession made by the respondent that the notification letters are in the same terms as those in Sandor. Therefore, I am bound to apply Sandor where Markovic J said, at [49], that the notification letter was invalid because it was:
…incomplete and unclear in that it did not explain that the applicant was taken to have received it at the end of the day it was transmitted to his authorised applicant.
Further, that the notification letter did not explain that the applicant was taken to have received it at the end of the day it was transmitted to its authorised recipient. It did not explain the effect of s 490D(2) of the Act. At [51], her Honour made a number of comments about the use of the words, “you have taken” may incorporate the deeming effect, but that it was difficult for a person to understand how it was that they could put together in three separate pieces of information contained in different parts of the letter to enable them to calculate the time in which the application for review can be made. Her Honour found as follows, at [52]:
It follows, in my opinion, the notification letter does not comply with –section 66D(2)(i) –of the Act. It does not state the information required by that section in a way which is complete or clear nor does it, adopting the formulation of EFX17, state the time on which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter.
CONCLUSION
In my view, I am bound by Sandor. The same error that exists in Sandor is present in this matter. And on that basis, I propose to allow the application.
I certify that the preceding ten (10) 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
0
1
1