Kim v Minister for Immigration & Multicultural Affairs [2001] FCA 1063

FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration & Multicultural Affairs [2001] FCA 1063

MYUNG SOOK KIM v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 593 OF 2001 LINDGREN J 1 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 593 OF 2001

BETWEEN: MYUNG SOOK KIM

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 1 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 N 593 OF 2001

BETWEEN: MYUNG SOOK KIM

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 1 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 The applicant ("Ms Kim"), a national of Korea, born on 8 August 1957, seeks review of a decision of the Migration Review Tribunal ("the Tribunal"), apparently given on 18 April 2001, by which the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively, "the Delegate" and "the Minister") made on 18 June 1996 that Ms Kim was not entitled to the grant of a Business (Temporary) (Class TB) visa. Although Ms Kim is the only applicant before the Court, before the Tribunal she had co-applicants, namely, her husband and their son, who were "secondary applicants".

legislation 2 I will outline the relevant legislative provisions, but only to the extent to which they are relevant to this matter. 3 Subsection 29(1) of the Migration Act 1958 (Cth) ("the Act") empowers the Minister to grant a non-citizen permission, to be known as a visa, to remain in Australia. Section 30 provides that a visa to remain in Australia may be a permanent visa or a temporary visa. The visa for which Ms Kim applied was a temporary visa. 4 Section 31 provides in subs (1) that "[t]here are to be prescribed classes of visas", in subs (3) that the "regulations may prescribe criteria for a visa or visas of a specified class" (my emphasis), and in subs (5) that a visa is a visa of a particular class if the Act or the regulations so specify. Subsection 40(1) provides: "The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances" (my emphasis). Subsection 41(1) provides: "The regulations may provide that visas, or visas of a specified class, are subject to specified conditions" (my emphasis). 5 Section 65 provides that "[a]fter considering a valid application for a visa, the Minister", "if satisfied" of certain things specified in the section, "is to grant the visa", or, "if not so satisfied, is to refuse to grant the visa". One of the things specified is that the "criteria" for the visa prescribed by the regulations have been satisfied. 6 Section 475 provides that certain decisions are, and other decisions are not, "judicially-reviewable decisions". By virtue of par 475(1)(a), a decision of the Tribunal is a judicially-reviewable decision. Section 476 provides that application may be made for review by this Court of a judicially-reviewable decision on any one or more of the grounds specified in subs 476(1). 7 The particular ground on which the applicant relies is that specified in par (e) of subs 476(1) which reads as follows: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;…" 8 Section 485 provides that this Court does not have any jurisdiction in respect of judicially-reviewable decisions other than the jurisdiction provided by Part 8 of the Act (comprising ss 474 to 486) or by s 44 of the Judiciary Act 1903 (Cth), while s 486 provides that this Court "has jurisdiction with respect to judicially-reviewable decisions" and that "that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution". 9 Division 2.1 of the Migration Regulations 1994 (Cth) ("the Regulations") provides for classes, criteria and conditions of visas as well as other matters. Regulation 2.01 provides that for the purposes of s 31 of the Act, the prescribed classes of visas are, inter alia, the classes set out in the respective items in Schedule 1 to the Regulations. Regulation 2.02 provides in subreg (1) that Schedule 2 to the Regulations "is divided into Parts, each identified by the word 'Subclass' followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass". Regulation 2.03 provides that for the purposes of subs 31(3) of the Act, the prescribed "criteria" for the grant to a person of a visa of a particular class are the "primary criteria" or, if relevant, the "secondary criteria" set out in the relevant Part of Schedule 2. Ms Kim, as the primary applicant within the family unit, was required to satisfy the primary criteria. Regulation 2.04 provides that for the purposes of s 40 of the Act, the only "circumstances" in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2. Regulation 2.05 provides, inter alia, that for the purposes of subs 41(1) of the Act, the "conditions" to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included. 10 Ms Kim lodged her application for the visa on 29 May 1996, that is, prior to 1 August 1996, on which date the Migration Regulations (Amendment) Regulation (SR No 76 of 1996) commenced. That amending Regulation omitted item 1202 from Schedule 1 to the Regulations and omitted from Schedule 2 to the Regulations "Part 412 (Independent Executive)". However, the amending Regulation provided in clause 41, under the heading "Transitional (Applications for Class TB visas)", as follows: "41.1 This regulation applies to an application for a Business (Temporary) (Class TB) visa that had not been finally determined within the meaning of subsection 5(9) of the Act before 1 August 1996. 41.2 An application to which this regulation applies must be decided in accordance with the criteria that applied to the application on 31 July 1996." The effect of this transitional provision was that Ms Kim's application for a Business (Temporary) (Class TB) visa had to be decided in accordance with the criteria that applied to such an application on 31 July 1996. 11 As at 31 July 1996 there was listed in Schedule 1 to the Regulations, item 1202, "Business (Temporary) (Class TB)(1)", which listed various subclasses including "Subclass 412 (Independent executive)". Schedule 2 prescribed, inter alia, the "Criteria to be satisfied at time of application" (412.21) and "Criteria to be satisfied at time of decision" (412.22) in respect of such a visa. It is the criteria to be satisfied at the time of the decision with which the present case is concerned. 12 The Tribunal found that Ms Kim satisfied the criteria specified in Schedule 2 except the following one: "412.224 The Minister is satisfied that the establishment of the new business referred to in clause 412.221 will provide Australia with substantial international trade or other economic benefits." Clause 412.221, referred to in clause 412.224, was as follows: