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MIGRATION - Notice of Motion - summary dismissal.

PRACTICE & PROCEDURE - Notice of Motion - summary dismissal.

Lee v Minister for Immigration [2002] FMCA 279 (15 November 2002)

Lee v Minister for Immigration [2002] FMCA 279 (15 November 2002)
Last Updated: 19 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION
[2002] FMCA 279



MIGRATION - Notice of Motion - summary dismissal.

PRACTICE & PROCEDURE - Notice of Motion - summary dismissal.



Applicant:
KI KWANG LEE



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ611 of 2002



Delivered on:


15 November 2002



Delivered at:


Melbourne



Hearing Date:


6 August 2002



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Mr Krohn



Solicitors for the Applicant:


Victoria Legal Aid



Counsel for the Respondent:


Mr Knowles



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the Respondent's Notice of Motion dated 13 June 2002 be dismissed.

(2) That the Respondent pay the costs of and incidental to the Respondent's Notice of Motion filed in the Federal Court on 13 June 2002 both in the Federal Court of Australia at Melbourne and in the Federal Magistrates Court of Australia at Melbourne.

(3) Each party file and serve any further Affidavits on which they seek to rely with respect to the hearing of the Amended Application filed 12th day of June 2002 on or before 10 January 2003.

(4) Each party file and serve contentions of fact and law at least two days prior to the hearing date.

(5) All extant Applications are adjourned for final hearing on the 29th day of January 2003.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ611 of 2002

KI KWANG LEE


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. This is a Notice of Motion dated 13 June 2002 filed by the Respondent seeking Orders that the Applicant for an Order of Review dated 2 May 2002 (as amended by the Amended Application for an Order of Review dated 11 June 2002) be dismissed or struck out as to part or parts pursuant to Order 20 Rule 2 or Order 11 Rule 16 of the Federal Court Rules by reason of the Application being made out of time; and furthermore or alternatively the Application disclosing no reasonable basis.

2. The Notice of Motion is supported by the Affidavit of Richard Colin Knowles affirmed 22 May 2002 and filed 23 May 2002.

3. In support of the Applicant's opposing of the Notice of Motion is filed an Affidavit of Donald Leslie Lucas affirmed 5 August 2002. The Applicant relies upon that Affidavit.

4. Since the hearing of this matter I have received a facsimile from the Respondent which essentially provided that contrary to previous instructions, the Respondent's delegate in fact granted the Applicant a Bridging Visa A on 24 October 2001 for the period from 31 October 2001 to 30 November 2001. This information and revised instructions is to supersede any inconsistent position previously stated in the Respondent's written and oral submissions and other supporting material.

5. The facsimile noted in relation to this grant of a Bridging Visa A:

a) the grant of the Bridging Visa A was an administrative error and the Applicant did not qualify for this visa during this period or at any subsequent time;

b) even allowing for the period during which the Applicant was erroneously granted a Bridging Visa A, he was an unlawful non-citizen from 1 December 2001 to 25 January 2002;

c) as such, the Respondent's position in the proceeding remains unaltered, namely that:

i) at the time of the Application in respect of the only properly reviewable decision of 22 March 2002, the Applicant had been an unlawful non-citizen in the preceding six-month period; and

ii) therefore, this third Permanent Visa Application was invalid; and

iii) therefore, there was no substance to the Applicant's claim that this decision is subject to reviewable error.

Factual background

6. The Applicant was born on 18 October 1966 in South Korea. He entered Australia on an Electronic Travel Authority (subclass 976) on 29 February 2000. On 8 May 2000 the Respondent granted the Applicant a Temporary Student Visa valid until 30 July 2001. The Applicant returned to South Korea between 24 December 2000 and

16 January 2001. He re-entered Australia on 17 January 2001 on his Temporary Student Visa. On 29 June 2001, the Respondent granted the Applicant a further Temporary Student Visa valid until 30 October 2001.

7. On 16 October 2001 the Applicant lodged with the Department Applications for the two following visas; (a) Graduate Skilled Temporary Visa (Class UQ) (subclass 497) (Temporary Visa); and (b) Skilled Independent Overseas Student Visa (Residence) (Class DD) (subclass 136) ("Permanent Visa").

8. In correspondence to the Applicant dated 23 October 2001, a Ms Pereira of the Department acknowledged receipt of both the Temporary and Permanent Visa Applications. The correspondence served only as notification that the Applications had been received.

9. In correspondence to the Applicant dated 24 October 2001, Ms Pereira of the Department advised:

a) as to the Temporary Visa Application:

i) it was invalid because it was not accompanied by evidence of the Applicant's completion of relevant studies within the six months preceding the date of the Application; and

ii) it was invalid because according to the Department's records, the Applicant was not in Australia at the time of lodging the Application; and

b) as to the Permanent Visa Application:

i) it was invalid because it was not accompanied by evidence of the Applicant's completion of relevant studies within the six months preceding the date of the Application; and

ii) it was invalid because it was not accompanied by evidence of a criminal records check obtained from the Australian Federal Police within the 12 months preceding the date of the Application; and

iii) it was invalid because according to the Department's records, the Applicant was not in Australia at the time of lodging the Application.

10. The Department returned to the Applicant his Permanent Visa Application and supporting documentation together with his Temporary Visa Application and supporting documentation in the correspondence of 24 October 2001. The Department warned the Applicant that if he did not lodge a valid Application for a substantive visa, then he must "depart Australia by the date his current visa ceases".

11. The Applicant's Temporary Student Visa was valid until 30 October 2001. The facsimile received by the Court from the solicitors for the Respondent and dated 21 October 2002 indicates that the Applicant was in fact granted a Bridging Visa A on 24 October 2001 for the period from 31 October 2001 being the day immediately following the expiry of the Temporary Student Visa until 30 November 2001.

12. On 29 November 2001, the Applicant lodged with the Department a second Permanent Visa Application. In a letter accompanying that second Application and dated 27 November 2001, the Applicant stated that he submitted further evidence to support his Application. That further evidence included a letter of completion from an educational institution; and an Australian Federal Police record check. The letter of completion from an educational institution is dated 7 November 2001 from the Chisholm Institute and signed by the Institute's International Student Support Officer. The Federal Police record check is dated 14 November 2001.

13. Again, Ms Pereira, in correspondence to the Applicant dated

4 December 2001, acknowledged receipt of this second Permanent Visa Application with such correspondence serving only as notification that the Application had been received.

14. On 11 December 2001 the Trades Recognition Australia section of the Department of Employment and Workplace Relations (the "TRA" hereafter) affirmed its previous decision from October 2001 that on the evidence available the Applicant did not meet the criteria for it to make a satisfactory skills assessment in his case.

15. In correspondence to the Applicant dated 20 December 2001 from

Ms Pereira in the Respondent's Department, the Applicant was advised his second Permanent Visa Application was invalid because:

The Applicant seeking to satisfy the primary criteria in the Skilled Independent category must submit evidence of a satisfactory skilled assessment from the relevant assessing authority undertaken in a 60 point skill level occupation (the nominated occupation must be on the Skilled Occupations List).

Once again the Department warned the Applicant that if he did not lodge a valid Application for a substantive visa then he must depart Australia by the date his current visa ceases. At that time his Bridging Visa A may have expired. However, if the prior Temporary Visa Application was valid then Reg. 2.21B of the Migration Regulations would operate to grant the Applicant a Bridging Visa (see following paragraph). Moreover, Reg. 2.07A may have become operative.

16. The Department also forwarded correspondence to the Applicant dated 20 December 2001 in relation to his Temporary Visa Application requesting additional information for assessment of that Application --

"Which was received in this office on 16/10/02."

17. It is not clear why such correspondence was forwarded given that the Department had previously advised the Applicant that that visa Application was invalid. The Applicant was given in that correspondence until 24 January 2002 to provide the additional information as requested. In response to the correspondence requesting additional information, the Applicant provided same under cover of a letter to the Department dated 21 December 2001 wherein the Applicant submitted a copy of an extract from his passport indicating his presence in the country at the relevant time.

18. In correspondence to the Department dated 18 and 21 January 2002, the Federal Member for Dunkley, Mr Bruce Billson MP, argued that the TRA's assessment was not correct because it relied on incomplete material about the Applicant and advised that he was seeking the TRA review its assessment. The TRA did reassess the Applicant and on

23 January 2002 certified that the Applicant met the criteria for a satisfactory skills assessment. Accordingly, in correspondence to the Respondent dated 24 January 2002, Mr Billson MP requested that the Applicant's Permanent Visa Application be --

"Reactivated and assessed on its merits."

19. On 25 January 2002, the Department granted the Applicant a Bridging Visa E.

20. In correspondence to the Department dated 28 January 2002, the Applicant referred to the new TRA assessment and requested that --

"The original date of Application 16 October 2001 be accepted as the current Application date."

21. On 30 January 2002 the Applicant lodged with the Department a third Application for a Permanent Visa.

22. In correspondence to the Applicant dated 22 March 2002, the Department advised that the third Permanent Visa Application was invalid because --

"The Applicant ... must not have been an unlawful non-citizen at any time in the six months immediately before making the Application.

Our records indicate that between 30 November 2001 and

25 January 2002 you were unlawful and were placed on a Bridging Visa E therefore you are ineligible to apply."

The correspondence also stated that as the Application was not validly lodged it was returned together with all the documentation included. Once again the Applicant was advised that if he did not lodge a valid Application for a substantive visa then he must depart Australia by the date his current visa ceases.

23. On 2 May 2002 a Ms Hassel filed on the Applicant's behalf the initial Application. The Application was not signed by the Applicant. That has been dealt with by Marshall J. Subsequently, on 12 June 2002, the Applicant filed and served the Amended Application.

24. The test for the summary dismissal of a proceeding is clear and this Court must exercise such power of dismissal with exceptional caution. The Application must be --

"So clearly untenable that (it) cannot possibly succeed."

25. I am not satisfied that this is a matter appropriate for summary dismissal. I am not satisfied that the Applicant's case is not arguable. The Respondent concedes that the Application with respect to the decision dated 22 March 2002 concerning the validity of the third Permanent Visa Application was within time pursuant to s.477 of the Migration Act.

26. Further, I accept that the Applicant's Application is arguably within time so far as it seeks review of the action of the Respondent's Department in relation to the Temporary Visa Application received by the Department on or about 16 October 2001. This Application was initially referred to by the Respondent's Department as invalid but in subsequent correspondence of 20 December 2001 was treated as valid subject only to proof that the Applicant had been in Australia at the time he made the Application. That proof existed. The Applicant also argues that the Application initially regarded as invalid was in fact valid and that the refusal of the Department to deal with it amounts to "conduct" which is continuing. I accept that the issue of whether "conduct" or "decision" or both are involved is not proper for summary determination at a preliminary hearing. I accept that there is some degree of complexity about these matters and that they are significantly connected with the substantive Application.

27. Much of the Respondent's outline of submissions in support of the Notice of Motion go to submissions which will be raised on the hearing of the substantive Application and are relevant to the hearing of a substantive Application of this type.

28. It is arguable that the Temporary Visa Application of 16 October 2001 was a valid Application or, alternatively, was initially invalid but by

20 December 2001 correspondence was treated by the Department as valid whether ab initio or cured. This impacts upon whether the Applicant was ever an unlawful citizen. It is arguable that the Application may have acquired a valid Bridging Visa A.

29. The Amended Application is clear and not embarrassing. I do not propose to entertain any Application in the nature of one to strike out pleadings. The rules of this Court are sufficient for the conduct of the matter and in order to proceed without further undue delay in this matter, I propose simply to make the Orders which I consider necessary to further advance the matter to trial.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Louise Dorian

Date: 15 November 2002
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