Oh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 749 (6 June 2003)

Last Updated: 25 July 2003

FEDERAL COURT OF AUSTRALIA

Oh v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 749

GWANG YIK OH, MI SUK HWANG, EUN SOL OH & JIN SOL OH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER MIGRATION REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

S 214 of 2003

MANSFIELD J

6 JUNE 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 214 OF 2003

BETWEEN:	GWANG YIK OH FIRST APPLICANT MI SUK HWANG SECOND APPLICANT EUN SOL OH THIRD APPLICANT JIN SOL OH FOURTH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	6 JUNE 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. Application by notice of motion for an extension of time is refused.

2. Application is dismissed.

3. Applicant to pay costs of the first respondent fixed at $1250, including disbursements.

4. No order for costs of the second and third respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 214 OF 2003

BETWEEN:	GWANG YIK OH FIRST APPLICANT MI SUK HWANG SECOND APPLICANT EUN SOL OH THIRD APPLICANT JIN SOL OH FOURTH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	MANSFIELD J
DATE:	6 JUNE 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is a notice of motion seeking an extension of time within which to apply for relief in the nature of a writ of certiorari to quash a decision of the Migration Review Tribunal (the Tribunal) given on 1 August 2001 and for other relief. The Tribunal's decision was to affirm a decision of a delegate of the first respondent not to grant to the applicants a Special Eligibility (Residence) (Class AO) visa, subclass 806. The application to quash the Tribunal's decision was made to the High Court on 17 October 2002, some 14 months after the Tribunal's decision and well outside the period permitted by O 55, r 17 of the High Court Rules.

2 The matter has since been remitted to this Court in the circumstances referred to by von Doussa J in Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567. In that decision, his Honour identified the relevant procedural and time limitation provisions in the rules, and the principles upon which an application such as the present should be determined. I am content to adopt those expressions of the procedural obligations, time limits and relevant principles for the purposes of this decision.

3 The applicants are husband, wife and their two daughters. Counsel for the applicants referred to only two matters relevant to the exercise of the discretion whether or not to extend time. The first related to the reasons for the delay in making the application to the High Court. The second related to the merits of the present application, that is, as to whether the applicants have any prospect of succeeding if they are granted an extension of time within which to bring the proceedings.

4 As to the first, in my judgment there is no explanation. The applicant husband has indicated in his affidavit that following the Tribunal's decision he instructed his migration agent to apply to the first respondent under s 351 of the Migration Act 1958 (Cth) (the Act) to substitute a more favourable decision in his case than that made by the Tribunal. However, correspondence received by the Tribunal from the applicants' migration agent during the course of its review indicates that the application to the Tribunal and then to the first respondent under s 351 was a deliberate strategy on the part of the applicants.

5 On 4 April 2001 the applicants' migration agent informed the Tribunal by letter that in the circumstances which had then occurred (involving the death of the applicant husband's mother, and so the loss of his nominator and the loss of his status as a special need relative):

`... the only choice would be to lodge a review through the MRT and take this matter before the Minister using his powers under s 351 of the Migration Act on the basis of the extreme hardship and prejudice that is caused to our client because of the death of his mother.

Our client therefore understands and agrees that the Tribunal will have no choice in this case but to refuse the application, however, the Tribunal may be willing to make a recommendation to the Minister informing him that he should consider intervening in this case because of the death of our client's mother.'

By a further letter on 9 May 2001 the migration agent informed the Tribunal that it could make no other decision than to affirm the primary decision, and that the applicants accepted that was the main difficulty in the case. He went on to say:

`... one of the reasons for proceeding through to the Tribunal is so that our client can access the Minister under s 351 after the Tribunal affirms the application.'

6 In my judgment, the material shows that the applicants made a calculated and informed decision not to pursue the present application following the Tribunal's decision, but instead decided to pursue an application under s 351. In this instance, given those circumstances, I think the delay is not insignificant.

7 The second matter, namely the merits of the application, also leads to the application failing. Counsel for the applicants contended that the Tribunal's decision was jurisdictionally flawed because it failed to accord a hearing to the applicants. It is arguable that a failure on the part of the Tribunal to provide an opportunity to the applicants to have a hearing before making the decision would give rise to jurisdictional error on its part: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 74. However, there is no basis for thinking that the Tribunal failed to give the applicants an opportunity to appear before it at the hearing.

8 The Tribunal records in its reasons for decision at par 12:

`The visa applicant sought review of the decision by the Tribunal on 14 March 2001. The applicant's migration agent provided a submission dated 4 April 2001, in which he stated that both he and the visa applicant are aware that the review application cannot succeed, given that regulation 806.221 cannot be satisfied. The submission states further that as there are no contested issues in this case, the Tribunal may want to move quickly and make a decision. However, he goes on to say that he looks forward to a hearing. The Tribunal wrote to the review applicant's migration agent on 2 May 2001 inviting him to advise the Tribunal whether the review applicant consented to the Tribunal making a decision on the review application pursuant to section 360(2)(b) without proceeding to a hearing. The review applicant's migration agent responded on 9 May 2001, agreeing that the decision must be affirmed but not indicating his consent to the Tribunal proceeding to a decision without a hearing. Several unsuccessful attempts were made by the Tribunal to contact the review applicant's migration agent to confirm that a hearing would not be required.'

9 That passage in the Tribunal's reasons is clearly based upon the two letters of 4 April 2001 and 9 May 2001, to which I have referred. Indeed, it seems to be in error that the Tribunal records that the letter of 4 April 2001 suggests that the migration agent is, nevertheless, seeking a hearing on behalf of the applicants. It clearly does not do so. The tenor of both of those letters as noted is that the applicants did not wish a hearing before the Tribunal, and expected the Tribunal to dismiss the application.

10 There is no foundation for any optimism at all on the applicants' part that their application, if it proceeds, could succeed. There is no foundation for thinking that there is any arguable case that the Tribunal failed to accord the applicants procedural fairness in the way in which they now assert. Accordingly, I make the following orders:

1. Application by notice of motion for an extension of time is refused.

2. Application is dismissed.

3. Applicant to pay the costs of the first respondent fixed at $1250, including disbursements.

4. No order for costs of the second and third respondents.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 22 July 2003

Counsel for the Applicant:	Mr M W Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr L K Leerdam
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 June 2003
Date of Judgment:	6 June 2003