Kim v Minister for Immigration & Citizenship [2008] FCA 79 (15 February 2008)

Last Updated: 18 February 2008

FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration & Citizenship [2008] FCA 79

CHUNG WHEE KIM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 1831 OF 2007









MARSHALL J
15 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1831 OF 2007

BETWEEN:	CHUNG WHEE KIM Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	15 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s application for an extension of time within which to seek leave to appeal from the judgment of the Federal Magistrates Court of Australia is refused.

2. The applicant pay the first respondent’s costs of the application, fixed at $1,500.00.

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 1831 OF 2007

BETWEEN:	CHUNG WHEE KIM Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE:	15 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, Mr Chung Whee Kim, applies for leave to appeal from the judgment of Federal Magistrate Turner; see SZGEF v Minister for Immigration & Anor [2007] FMCA 1196. His Honour dismissed an application by Mr Kim for judicial review of a decision of the Migration Review Tribunal. Leave to appeal is required because the judgment below is an interlocutory one. His Honour considered that the application before him required an extension of time for filing purposes.

2 Counsel for the first respondent Minister for Immigration and Citizenship concedes that the application did not require an extension of time but submits that leave to appeal should be refused because the Tribunal’s decision is not affected by jurisdictional error. In those circumstances, counsel contends that it would be futile to remit the matter back to the Federal Magistrates Court or to the Tribunal.

3 The appropriate course, in circumstances where an extension of time was not required but considered by the Court below to be required, is to grant leave to appeal and to consider forthwith whether any jurisdictional error occurred. This course would save the trouble and expense of remitting the matter to the Court below. However, in this matter, Mr Kim required an extension of time within which to file his application for leave to appeal in accordance with O 52 r 5(3) of the Federal Court Rules ("the Rules"). In the absence of any jurisdictional error in the decision of the Tribunal, it would not be appropriate to grant an extension of time within which to file an application for leave to appeal. The Court will now consider whether any such error was made by the Tribunal.

4 Mr Kim is a citizen of the Republic of Korea, also known as South Korea. On 5 March 2002, he applied for an Educational (Temporary) (Class TH) – occupational trainee subclass 442 visa. On 7 June 2002, a delegate of the then Minister refused to grant Mr Kim that visa. On 5 July 2002, Mr Kim applied to the Tribunal for a review of the decision of the delegate.

5 In his application for the visa, Mr Kim stated that he proposed to undertake cattle farm training in Australia. In her decision, the delegate referred to cl 442.225 of Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations"), which required, amongst other things, that an applicant satisfied public interest criterion 4005. That criterion required an applicant to be free from tuberculosis or a disease or condition that is, or may result in the applicant being, a threat to public health or a danger to the Australian community: see criterion 4005 of Sch 4 of the Regulations. Having received no information from Mr Kim to satisfy her that he met the above criterion, the delegate rejected his application.

6 On 13 September 2002, the Tribunal wrote to Mr Kim, pursuant to s 359A of the Migration Act 1958 (Cth), inviting his comment on the following information:

1. There is no evidence before the Tribunal that you have an approved nomination by an employer in Australia.

2. Also, there is no evidence that you have completed the required medical examination. You do not satisfy clause 442.225.

7 The letter went on to stress that without "an approved nomination, and a successful medical examination", Mr Kim was unable to satisfy all the criteria required for the grant of the visa. The letter stated, in effect, that the invitation to provide written comments should be provided within 35 days after the date of the letter.

8 In the middle of the second page of the letter, the Tribunal said:

If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal.

(Original emphasis and underlining).

9 The Tribunal repeated the above sentence, absent underlining but still all in bold type, in the penultimate paragraph of the letter on its last page.

10 On 15 October 2002, Mr Kim responded to the Tribunal’s request for information by facsimile transmission in which he said:

"I thought that MRT already received all my files including the approved nomination letter from the Department of Immigration because I was told that MRT would request the Department of Immigration for all documents that relate [to] my application. If MRT has not the evidence of the nomination approval, either I will send or bring it to you as soon as I obtain it from the company. I will also send the medical examination result as soon as possible."

11 On 30 October 2002, the Tribunal wrote to Mr Kim advising him that, as the information requested in the 13 September 2002 letter had not been provided to it, he was not entitled to a hearing. It provided him with a further two weeks from 30 October 2002 for the provision of any further documentary evidence. It also stated that the Tribunal "has no evidence that a nomination concerning you has been approved by the Department...".

12 On 6 January 2003, the Tribunal published its decision to affirm the decision of the delegate. By that time, it had received no reply to its letter of 30 October 2002. The Tribunal found that cl 442.225 of Sch 2 to the Regulations had not been satisfied. It also found that cl 442.222 had not been satisfied. Clause 442.222 required that a nomination in respect of occupational training had been lodged and approved by the Minister. There was no evidence that had occurred.

13 In Mr Kim’s "grounds of appeal" in his draft notice of appeal, he states that the Tribunal did not consider the nomination issues. That contention is at odds with the text of the Tribunal’s decision which is referred to in the preceding paragraph above. Mr Kim’s next ground is that the Tribunal failed to consider whether the nomination ought to have been approved, on the material that was before the delegate. It is not for the Tribunal to consider the application for review on the material before the delegate alone but also on the material before it. In any event, cl 442.222 is only fulfilled if the nomination has been lodged and approved by the Minister. There was no evidence of that occurring, either before the delegate or before the Tribunal, despite a search of the Department’s records and requests by the Tribunal to Mr Kim to provide it with such evidence.

14 The final proposed ground states:

The nomination application was approved but the [Department] and the Tribunal both denied the fact.

There was no evidence before the Tribunal to support that allegation.

15 The draft notice of appeal does not disclose any arguable ground for correction of any jurisdictional error. In that case, the Court refuses the applicant’s application to dispense with compliance with O 52 r 5(2) of the Rules and extend the time within which to file the application for leave to appeal from the judgment of the Court below. The first respondent should have his costs paid by the applicant.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:
Dated: 15 February 2008

The Applicant did not appear.

Counsel for the First Respondent:	Mr J Pinder
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	15 February 2008
Date of Judgment:	15 February 2008