Lee, Choong Kyoo v Minister for Immigration & Multicultural Affairs [1998] FCA 487

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 879 of 1997

BETWEEN: CHOONG KYOO LEE

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SACKVILLE J

DATE: 1 MAY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: In these proceedings, which have been listed for hearing today, Ms Hong has sought leave to appear for the applicant in order to seek an adjournment on his behalf. Ms Hong has told me that she is an employee of a company Sunsco Pty Limited. She has also told me that the principal of Sunsco Pty Limited is Mr Edwin Hong, a registered migration agent. Ms Hong herself is not a registered migration agent.

Despite the fact that Ms Hong is not a registered migration agent, I granted her leave to make representations on behalf of the applicant as to why an adjournment of these proceedings should be granted. She has done so. The application in this matter was filed in the Court on 22 October 1997. The application sought review of the decision of the Refugee Review Tribunal ("RRT") made on 26 September 1997. The RRT affirmed the decision of the Minister's delegate that the applicant was not a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees. The application stated that the applicant was aggrieved by the decision because he would be compelled to return to Korea if the decision stood and because he had a well-founded fear of persecution if compelled to return to Korea. The ground upon which review of the RRT's decision was sought was that the decision involved an error of law. The 'particulars' to this ground claimed that "the Tribunal erred in its application of the law to the facts of the applicant's case". From the Court file it can be seen that the matter came on for directions on 21 November 1997, before another Judge of this Court. On that occasion, the Minister was ordered to file and serve affidavits by 5 December 1997. In fact, an affidavit was filed on behalf of the Minister on 8 December 1997. The applicant, who appeared with his daughter at the directions hearing, was ordered to file and serve affidavits upon which he intended to rely by 2 January 1998. On 27 February 1998 the matter was again before the Court for a directions hearing. The applicant had not complied with the direction to file affidavits and did not appear on 27 February 1998. On that day, orders were made that the applicant file and serve by 30 March 1998 any affidavits upon which he intended to rely. The matter was set down for hearing on 1 May 1998. Orders were also made for the filing of an outline of submissions on behalf of the Minister. The orders made on 27 February 1998 provided for my associate to forward a letter to the applicant, at his address for service, notifying him of the orders that had been made. A letter was sent on 27 February 1998, in the following terms: "A directions hearing in this matter took place on 27 February 1998. On that date, his Honour made the following orders: 1. The applicant must file and serve any affidavits on which he intends to rely on or before 27 March 1998. (You are the applicant.) 2. By 4 pm on 27 April 1998, the Respondent (the Minister for Immigration and Multicultural Affairs) must file with his Honour's associate and provide to the applicant a written outline of submissions on which the Minister intends to rely. 3. The parties have liberty to apply to the Court on 3 days notice. His Honour confirmed that the final hearing would take place on 1 May 1998. This is the date on which your application will be decided by the Court. A copy of this letter has been sent to Mr S Tesoriero, the solicitor for the Minister." On 24 April 1998, a letter was received by my associate from Mr Edwin Hong. Mr Hong described himself in that letter as Mr Lee's "friend". It appears from what Ms Hong has had to say today that Mr Hong may well have written that letter in his capacity as a registered migration agent. If that is correct, the letter is misleading in its description of Mr Hong's relationship to Mr Lee. Be that as it may, the letter contains the following paragraphs: "Yesterday Mr Lee called me in Seoul and asked me to write this letter on behalf of him. The problem is the hearing date. Currently, his work in Rockhampton, in far North Queensland has not been completed. This contract was scheduled to be completed well before the month of April. However, due to the problem of getting supplies and welders/boilermakers within the region, the contract will be stretched well over the month of May. Please allow Mr Lee a further extension on hearing date until July 1998. Mr Lee will be deeply appreciated [sic] if allowed." My associate replied on 24 April 1998 as follows: