FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448

HYUK KYU LEE V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1043 OF 2001

EMMETT J

7 SEPTEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion filed on 4 September 2001 be dismissed

2. The applicant pay the respondent’s costs of that motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 24 August 2001 at the first return of an application for an order of review brought by Hyuk Kyu Lee, there was no appearance for the applicant.  For the reasons that I gave on that occasion, I acceded to the request of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) to dismiss the application – see Lee v Minister for Immigration and Multicultural Affairs FCA [2001] 1230.  However, I directed the Minister to inform the applicant of the provisions of Order 35 Rule 7, which provides that the Court may set aside an order made by reason of non appearance of a party. 

2                     On 4 September 2001 the applicant filed a notice of motion seeking the following order:

“I will lodge my application for another order of review because I couldn’t get a directions hearing”

Attached to the notice of motion is a medical certificate purporting to be issued by Sydney Hospital and Sydney Eye Hospital certifying that the applicant attended Sydney Hospital on 24 August and would be unfit for work from 23 August to 24 August due to “alleged assault”.  The location and description of the applicant’s injury was “right eyebrow stitches to nose”. 

3                     In support of that motion the applicant filed an affidavit saying as follows:

“My hearing in the court was scheduled for 10 am on 24 August 2001.  I was not able to attend the hearing because I was very sick.  On 22 August I had been punched on my face by someone as I walked on the street.  As a result I was in hospital from 23 August 2001 to about 1 am on 24 August 2001. I went to the court at about 11 am on 24 August but was there too late.  Please consider my excuse, the circumstances were beyond my control.”

4                     The motion was called on for hearing today. The solicitor for the Minister indicated that he was prepared to have the notice of motion treated as an application to set aside the orders that I made on 24 August 2001.  He was prepared to proceed on the basis that the non attendance of the applicant was satisfactorily explained.  However, the Minister advanced the contention that the notice of motion should be dismissed because to set aside the orders made on 24 August would be futile. 

5                     The Minister said that there is no indication that there is any ground of review that could possibly succeed.  As I indicated on 24 August 2001, the application of this Court discloses no grounds at all.  It contains the following:

“I am really frank that I couldn’t submit more reasons which are relevant to my case.”

I invited the applicant today to endeavour to formulate any grounds of review that might satisfy the requirements of s 476.  I indicated to him generally that the grounds contained in s 476 are failure to comply with the procedures of the Act, error of law, fraud or bias or that there was no evidence or other material to justify the making of the decision. 

6                     The applicant indicated from the bar table that he had obtained some legal advice.  He said that he spoke to a solicitor yesterday afternoon and that he saw the solicitor this morning but the solicitor said that he could not help him. 

7                     In the course of address the applicant said that he wished to rely on bias of the Tribunal.  He said that he could not understand why the Tribunal did not believe him.  He also said that he is a genuine student.  He also made a number of assertions concerning the circumstances surrounding his failure to attend courses as referred to in the reasons of the Tribunal.

8                     Nothing that was said indicated to me that the applicant has any prospect of establishing any of the grounds in s 476. It appears to me that he is anxious to have a further substantive hearing of his application .  He said that he acknowledges that he did the wrong thing in the sense that he should have made an application for extension of his visa before it expired. He believed that he did not have to worry about the legalities because he thought it would be all right.  He also said that he was stressed following the accident to which I referred in my earlier reasons.  The applicant said that it was a terrible accident, which caused him severe pain.

9                     They are matters that might have been relevant for the Tribunal in considering whether or not the applicant satisfied the requirements of clause 560.224 of the Regulations made under the Migration Act.  As I said in my earlier reasons, the Tribunal concluded that the applicant is not a genuine applicant for a student visa.  The Tribunal did not believe that the applicant could fill the requirements of clause 560.224(c).  The Tribunal did not believe that the applicant intended to comply with any conditions subject to which the visa was granted, having regard to the record of his non attendance at classes.

10                  The findings made by the Tribunal are findings of fact.  In the course of the hearing of the motion, the applicant has not advanced any basis upon which I can conclude that any of the grounds set out in s 476 could be established.  It appears to me, therefore, that to set aside the orders that I made on the last occasion would be futile.  Accordingly, I consider that the application constituted by the notice of motion should be dismissed.

Associate:

Dated:              16 October 2001