Lee v Minister for Immigration and Citizenship [2007] FCA 128 (16 February 2007)

Last Updated: 16 February 2007

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration and Citizenship [2007] FCA 128

YUN HAK LEE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2099 OF 2006





LANDER J
16 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2099 OF 2006

BETWEEN:	YUN HAK LEE Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	16 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The title of the first respondent be Minister for Immigration and Citizenship.
2. The application for an extension of time within which to apply for leave to appeal be refused.
3. The application for leave to appeal be dismissed.
4. The applicant pay the first respondent’s costs.

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	NSD 2099 OF 2006

BETWEEN:	YUN HAK LEE Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE:	16 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from an order made by a Federal Magistrate on 13 September 2006. The application was brought on 26 October 2006. Thus it is that the applicant would also need an order extending time within which the applicant bring the application for leave to appeal.

2 The application before the Federal Magistrate sought judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) given on 17 December 2004 which affirmed a decision of a delegate of the first respondent not to grant a subclass 442 Occupational Trainee visa to the applicant. The Federal Magistrate dismissed the application as incompetent. That order was interlocutory: Rule 44.12(2) of the Federal Magistrates Court Rules.

3 In the application to the Tribunal, the applicant’s brother, Mr Sung Hak Lee, was included as a secondary visa applicant. However, only Mr Yun Hak Lee applied for judicial review in this matter and his brother has not been included as an applicant.

4 The applicant is a citizen of the Republic of South Korea. The only criterion for grant of the relevant visa was that the applicant had to satisfy cl 442.222 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) which stipulated at the relevant time that:

‘442.222 (1)   Except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister.

(2)   The reference in subclause (1) to occupational training to be provided by the Commonwealth includes occupational training to be provided by:

(a) a body corporate incorporated for a public purpose by an Act or regulations made under an Act; or

(b) an authority or body, not being a body corporate, established for a public purpose by, or under, an Act or regulations made under an Act.’

5 The applicant lodged his application for an Occupational Trainee Subclass 442 visa on 18 March 2004. The applicant was nominated for the visa by MBKIM.com Pty Ltd on 18 March 2004.

6 On 22 April 2004 a delegate of the first respondent refused the applicant’s application on the ground that the nomination application lodged by MBKIM.com Pty Ltd had also been refused on the same day. The delegate refused MBKIM.com Pty Ltd’s application because the delegate was not satisfied that that applicant had demonstrated a commitment to the traineeship that it had nominated the applicant to undertake.

7 The applicant applied to the Tribunal for a review of the decision to refuse to grant a visa. By letter dated 13 October 2004 the Tribunal invited the applicant to comment on information that the Tribunal considered would be reason or part of reason for affirming decision under review. The applicant did not respond.

8 The Tribunal made its decision on the papers and found the applicant could not meet cl 442.222 of the Regulations as the nomination application lodged by the applicant’s nominator was refused. Furthermore, the Tribunal was not satisfied the proposed training would have given the visa applicant additional or enhanced skills that would be utilised in employment after leaving Australia. The nomination was not approved by cl 442.223(1) and the applicant did not meet cl 442.223.

9 Clause 442.223 of Schedule 2 of the Regulations stated:

‘442.223 The Minister is satisfied:

(a) that the occupational training that is proposed:

(i) is workplace-based; and

(ii) will give the applicant additional or enhanced skills that the applicant will be able to utilise in the applicant’s employment after leaving Australia; and

(b) that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.’

10 On 17 December 2004 the Tribunal sent the applicant a copy of the Tribunal’s decision which did not refer to the secondary applicant. In a letter dated 25 January 2005, the Tribunal sent the applicant a corrigendum which included a reference to the applicant’s brother, Mr Sung Hak Lee as a secondary visa applicant.

11 On 18 July 2006 the applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates court. The applicant asserted that the Tribunal ‘did not include Sung Hak Lee as the secondary applicant in the application’. The applicant claimed that the Tribunal made its decision without the secondary application ‘therefore its decision is void and null’. He further claimed that ‘MRT did not rectify their error even though DIMIA informed that MRT should include the secondary applicant into its record and decision’.

12 The application for review asserted that the applicant had received the Tribunal’s decision on 27 December 2004. The applicant sought an extension of time for making the application under s 477 of the Act.

13 The Federal Magistrate dismissed the application as incompetent because it was filed out of time. His Honour found the application was subject to the provisions of the time limits under s 477 of the Act. In relation to the applicant’s application for an extension of time, his Honour found the applicant was notified of the Tribunal’s decision on 27 December 2004. Even if the applicant had been properly informed in the preparation of the application, the applicant would not have benefited from extension of the transitional time limit as it was filed outside the transitional provisions. Furthermore, there was no affidavit explaining delay.

14 In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which the applicant claims the Tribunal did not reinstate the visas even though there was jurisdictional error as the applicant’s brother’s name was missing from the Tribunal decision. Furthermore, the applicant claims the Tribunal failed to allow the applicant 28 days to appeal to court. The applicant also seeks an extension of time as the applicant claimed that the decision was sent after 23 September 2006.

15 The applicant has failed to address the reasons why the Federal Magistrate dismissed the application for review as incompetent. The Migration Litigation Reform Act 2005 (Cth) (‘the Amending Act’) commenced on 1 December 2005. That Act introduced s 477 to the Migration Act which requires a party seeking a remedy in the Federal Magistrates Court, in the exercise of the Court’s original jurisdiction, to make application within 28 days of the actual notification of the decision.

16 Section 477(2) permits the Federal Magistrates Court to extend that 28 day period by up to 56 days provided that an application for that order is made within 84 days of the actual notification of the decision and the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

17 The Amending Act provides for transitional provisions: Schedule 1 Part 2. Clause 42 of those transitional provisions deems a decision made prior to the commencement date of the Amending Act, 1 December 2005, to have been made on 1 December 2005.

18 It follows that this application should have been brought within 28 days of 1 December 2005. Any application for an extension of time had to be brought within 84 days of 1 December 2005. No such application was brought within time. As I have observed, the application in the Federal Magistrates Court was brought on 18 July 2006.

19 Because of the provisions of s 477(3) of the Act, the Federal Magistrates Court has no jurisdiction to entertain an application or an application for an extension of time outside the 28 day period unless it has been extended pursuant to s 477(2). Strict compliance with the section is required. I agree with Tamberlin J in SZICO v Minister for Immigration and Multicultural Affairs [2006] FCA 1803.

20 It follows that the Federal Magistrate was right to dismiss the application as incompetent.

21 In my opinion, the application for leave to appeal should be dismissed because there is no prospect that if leave were granted the appeal would succeed. It follows that any application to extend the time within which to apply for leave to appeal also ought to be refused.

22 The orders of the Court are:

1. The title of the first respondent be Minister for Immigration and Citizenship.
2. The application for an extension of time within which to apply for leave to appeal is refused.
3. The application for leave to appeal is dismissed.
4. The applicant must pay the first respondent’s costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 16 February 2007

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr L Leerdam
Solicitor for the First and Second Respondents:	DLA Phillips Fox
Date of Hearing:	14 February 2007
Date of Judgment:	16 February 2007