Lee v Minister for Immigration and Citizenship [2008] FCA 162 (26 February 2008)

Last Updated: 28 February 2008

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration and Citizenship [2008] FCA 162

SANG BONG LEE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 2341 OF 2007

KENNY J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2341 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SANG BONG LEE Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	26 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file and serve a notice of appeal be refused.

2. The applicant pay the first respondent’s costs of the application fixed in the sum of $2,000.00.

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	2341 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SANG BONG LEE Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for extension of time in which to appeal against a judgment of the Federal Magistrates Court of 30 October 2007 dismissing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’).

2 The applicant is a citizen of South Korea, who arrived in Australia on 16 April 2001. On 20 September 2005 the applicant lodged an application for a Subclass 457 - Temporary Business (Long Stay) Entry (Class UC) visa (‘the visa’). A delegate of the first respondent refused to grant the applicant a visa on 2 March 2006. On 27 March 2006 the applicant applied to the Tribunal for a review of that decision.

3 For the purposes of the visa application, the applicant’s employer sponsor was KT Entertainment Pty Ltd ("KT Entertainment"). On 1 March 2006 a delegate of the first respondent refused to grant KT Entertainment approval as a standard business sponsor. Also on 27 March 2006 KT Entertainment lodged an application for review of the delegate’s decision to refuse to grant the proposed sponsor approval as a standard business sponsor. On 20 December 2006 the Tribunal affirmed the delegate’s decision not to approve the proposed sponsor.

4 On 10 January 2007 the Tribunal wrote to the applicant pursuant to s 359A of the Migration Act 1958 (Cth) (‘the Act’) inviting the applicant to comment on the failure of KT Entertainment to obtain approval as a standard business sponsor. On 16 February 2007 the applicant replied that he was seeking a new sponsor and requested two more weeks in which to do so.

5 On 20 February 2007 a Tribunal officer informed the applicant by phone that the Tribunal had not agreed to the extension. On the same day the Tribunal sent the applicant an invitation to appear before the Tribunal and said it had "considered the material before it but it is unable to make a favourable decision on this information alone".

6 After a hearing on 26 March 2007, the Tribunal found that the applicant’s proposed employer had not been approved as a business sponsor and that therefore the applicant did not meet cl 457.223(4) in Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’), or any of the alternative sub-criteria. The Tribunal therefore affirmed the decision not to grant the visa.

THE FEDERAL MAGISTRATE’S DECISION

7 On 17 May 2007 the applicant sought judicial review in the Federal Magistrates Court. The applicant claimed in his amended application that the Tribunal: (a) breached natural justice by not allowing an extension of time to apply for a second sponsorship and failed properly to consider the request; (b) failed to invite the applicant to provide further information about the proposed sponsors; (c) erred in proceeding to a hearing on the basis that it was unable to make a favourable decision based on the information before it, in circumstances where the applicant had sought to put further information before it; and (d) failed to give reasons for refusing the applicant’s request for an extension of time.

8 The Federal Magistrate found that the ground in relation to a request for extra time to apply for a second sponsorship was "misconceived" as it confused "the applicant’s request for an extension of time to reply to the s 359A notice with the Tribunal's invitation to the applicant to attend a hearing."

9 His Honour noted that in any event the hearing did not take place until more than 2 weeks after the request for the extension, so the applicant had an opportunity to respond to the s 359A letter at the hearing. His Honour also held that the Tribunal was under no obligation to grant an extension, or to give reasons for its refusal to grant an extension.

10 In relation to the alleged failure to request more detail of an alternative sponsor, his Honour noted that, under cl 457.223(4)(b)(ii), the Tribunal’s affirmation of the decision not to approve KT Entertainment as a standard business sponsor meant that the applicant’s visa application necessarily failed because an essential criterion was not satisfied, and could not be satisfied by any other sponsor. Therefore no additional information could have effected the decision.

11 His Honour also held that s 348 of the Act obliged the Tribunal to conduct the review, even though the applicant was bound to fail once he lost his sponsor; and that the Tribunal was not obliged to inform the applicant that his claim was hopeless: see Fernandez v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 960 and Sam & Ors v Minister for Immigration & Anor [2007] FMCA 1217.

12 Finally, his Honour found that the Tribunal held a hearing without having the power to do so since the applicant had failed to respond to the s 359A notice: see ss 359A, 362, 363, and 363A of the Act, and M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247 at [46]. This did not, so his Honour found, result in a denial of procedural fairness, because the Tribunal was bound to affirm the decision in any event and the applicant suffered no injustice. Therefore, relief was refused in the Court’s discretion and the application was dismissed, with costs.

APPLICATION FOR AN EXTENSION OF TIME

13 The Federal Magistrate delivered judgment on 30 October 2007. The applicant filed a notice of appeal on 27 November 2007, claiming that the Tribunal breached natural justice by not providing reasons for its refusal to extend the time to find a new sponsor, and erred in holding a hearing for the sole purpose of informing the applicant of its decision. On 7 December 2007, the applicant filed an application for an extension of time to file and serve a notice of appeal since the notice of appeal had been filed 7 days out of time.

14 The applicant submitted that he was not aware of the time limits involved in filing a notice of appeal. At the hearing today, his legal representative, who had also represented him before the Federal Magistrate, agreed that he had not told the applicant about the time limit. The first respondent did not argue that the first respondent has suffered any prejudice merely by virtue of the delay in lodgement. The applicant made further written and oral submissions in support of his application, but it is unnecessary to set them in detail here.

CONSIDERATION

15 Under Order 52 r 15(1) of the Federal Court Rules, a notice of appeal must be filed within 21 days from the date of judgment. In this case, the notice was filed just 7 days late. Pursuant to O 52 r 15(2), the time limit may be extended for ‘special reasons’. In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said, at 195:

"...the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression ‘for special reasons’ implies something narrower than this."

16 In an affidavit accompanying his extension of time application, the applicant not only explained that he was ignorant of the time limits, he also set out some of his personal circumstances, in support of his claim that he was "going through tough and stressful times". The delay is plainly slight and, if I were to extend time, the first respondent would not be prejudiced.

17 In this case, however, I would not grant the applicant’s extension of time application, because the proposed appeal does not have sufficient prospects of success to justify the grant of leave.

18 The applicant purported to challenge the Tribunal’s refusal to allow more time to organise another sponsor. As the learned Federal Magistrate pointed out, however, the applicant had only requested further time to respond to a s 359A notice. Further, the Tribunal essentially gave the applicant more than the time he sought when it notified him of a hearing date in the following month.

19 It must be borne in mind that once KT Entertainment failed to gain approved sponsor status, the applicant’s visa application was bound to fail. This is because it is a requirement for the visa that the applicant sought that the employer nominated in the visa application as his sponsor be the same employer as at the time of the decision to grant or refuse the visa: see cl 457.223(4)(b)(ii) of Schedule 2 and cl 1223A(3)(d) of Schedule 1 of the Regulations and Sam v Minister for Immigration and Citizenship [2007] FCA 1976 at [16 – 18]. It followed that the applicant’s efforts to organise an alternative sponsor would not have affected the outcome of the application. There was nothing the Tribunal could do to alter this outcome. The Tribunal was not, however, obliged to notify the applicant of this prior to giving its decision.

20 Even if (as the learned Federal Magistrate held) the Tribunal exceeded its jurisdiction when it held a hearing (see M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333 at 345-346), it had plainly not denied the applicant procedural fairness as he alleged or occasioned him any relevant prejudice.

21 The applicant, through his representative, suggested that the Tribunal had in some sense misled the applicant or caused him to waste time in making another visa application. If any time was lost, it was, as the first respondent said, slight and the applicant’s apparent misapprehension of his position cannot be attributed to the Tribunal.

22 In the circumstances of the case, the Federal Magistrate was entitled to find that the Tribunal’s discretion to refuse an extension of time to respond to the s 395A notice had not miscarried and that the Tribunal had no obligation to inform the applicant that his case was hopeless. Accordingly, the Federal Magistrate was correct in finding that, although the Tribunal exceeded its jurisdiction, the Tribunal had not denied the applicant procedural fairness in doing so.

23 Since the appeal has no prospects of success, I would refuse the application for an extension of time in which to file and serve a notice of appeal, with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 26 February 2008

Solicitor for the Applicant	Garry Seo & Associates
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 2008
Date of Judgment:	26 February 2008