Kim v Minister for Immigration

[2005] FMCA 687

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 687

MIGRATION – MRT decision on jurisdiction – application to Tribunal outside prescribed period – posting of delegate’s decision to authorised recipient and not visa applicant – applicant requested communications to be sent to personal address – applicant deemed to have received decision – whether notification included address of Tribunal and date of document – adequate reasons given by Tribunal.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, 494D

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Song & Anor v Minister for Immigration [2005] FMCA 685

First Applicant: TONG POK KIM

Second Applicant: CHAI HEUNG PARK

Third Applicant: CHAI SEUNG PARK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2686 of 2004

Judgment of: Smith FM

Hearing date: 12 May 2005

Delivered at: Sydney

Delivered on: 16 June 2005

REPRESENTATION

Counsel for the Applicants: Mr J Patel

Solicitors for the Applicants: Davidson James & Associates

Counsel for the Respondent: Mr G Kennett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. First applicant to pay the respondent’s costs in the amount of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2686 of 2004

TONG POK KIM, CHAI HEUNG PARK & CHAI SEUNG PARK

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the refusal by the Migration Review Tribunal (“the Tribunal”) to entertain an application for review of a decision of a delegate of the Minister.  The delegate on 3 May 2004 refused an application for a class TH (educational temporary) subclass 442 (occupational trainee) visa which had been lodged on 29 April 2004.  The application for review was lodged with the Tribunal by hand on 9 June 2004. 

2. An application to review this decision was made to this Court under s.483A of the Migration Act 1958 (Cth) (“the Act”) on 30 August 2004.  That provision gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In the present case, the jurisdiction of both courts which is invoked is the power under s.39B of the Judiciary Act 1903 (Cth) to order the issue of a writ of mandamus to compel the Tribunal to exercise its jurisdiction. Necessarily, the applicant seeks to persuade me that the Tribunal’s refusal was attended by jurisdictional error, so that the limitations on the Court’s powers under s.474(1) of the Act would not prevent relief being given (see Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76]).

3. The applicant has been represented by the same solicitor and counsel as have represented the applicant in Song & Anor v Minister for Immigration [2005] FMCA 685 (“Song”).  Both applications raise the same issues, and the evidence against which they were decided is not, in my opinion, relevantly distinguishable.  In these circumstances, the parties presented and argued Song as a “test case” and agreed that my decision on each issue argued in that case was equally applicable to the present matter. 

4. The replication of the evidence in each case extends to the relevant content of the visa application, the authorisation of Miss Choi as authorised recipient, the terms of and procedure for the delegate’s notification, the application for review, and the Tribunal’s reasons for finding the application ineligible.  I have set out the evidence on these matters in my judgment in Song.  The only difference is that in this matter, when completing Part J of the visa application, the present applicant ticked both the boxes “Myself” and “Authorised recipient” in response to question 43:  “All written communications about this application should be sent to:”. This circumstance reinforces rather than detracts from my opinion in the present case, that the applicant’s completion of Part K to appoint Miss Choi as her authorised recipient was a legally effective authority for the purposes of s.494D of the Act.

5. In these circumstances, rather than recite the evidence in the present case and repeat my reasoning in Song, I adopt that judgment as providing my reasons for making the same orders in the present matter. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  16 June 2005