Kong v MIMA

[2007] HCATrans 588

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B45 of 2006

B e t w e e n -
TIAN LE KONG
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 OCTOBER 2007, AT 9.33 AM

HEYDON J: A delegate of the respondent cancelled the applicant's student visa on the ground that he had breached a condition of that visa imposing certain enrolment and course requirements. The applicant admitted breach, but attributed the breach to health problems which he and his wife had suffered from. The Migration Review Tribunal upheld the delegate's decision on the ground that it had no discretion to set aside the cancellation without certification from the applicant's university of a satisfactory academic result.

Baumann FM dismissed an application for judicial review for the same reason.

The Federal Court of Australia (Collier J) dismissed an appeal on the ground that, in relation to the only ground of appeal which had not been abandoned, she was bound by a decision of the Full Federal Court to uphold Baumann FM's decision.

The applicant contends that special leave should be granted so that this Court can apply the reasoning in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1826 in relation to the role of notices under s 20 of the Education Services for Overseas Students Act 2000. That decision appears to be inconsistent with the decisions of the Full Federal Court (eg Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115) and of single judges in the Federal Court. In a suitable case this Court might be prepared to consider that disparity. However, this is not a suitable case. The delegate's decision here did not depend on a s 20 notice, but on information, including the applicant's admissions, that he had not complied with the relevant condition. Hence even if there were a defect in the s 20 notice, which has not been established, it was immaterial in these proceedings.

The application is dismissed with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish the disposition signed by Justice Kirby and myself.

AT 9.36 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

In *Kong v Minister for Immigration and Multicultural Affairs* [2004] FCA 100, Kirby and Heydon JJ of the Federal Court of Australia considered an appeal by Mr Kong against a decision of the Minister for Immigration and Multicultural Affairs. Mr Kong, a citizen of Vietnam, had sought a protection visa, which was refused by the Minister. The Administrative Appeals Tribunal had affirmed this refusal, and Mr Kong subsequently sought judicial review of the Tribunal's decision in the Federal Court.

The primary legal issue before the Full Federal Court was whether the Tribunal had erred in law by failing to adequately consider or give sufficient weight to certain evidence presented by Mr Kong. Specifically, the court was required to determine if the Tribunal had properly assessed the risk of persecution Mr Kong might face if returned to Vietnam, particularly in light of his alleged political activities and the potential for adverse attention from Vietnamese authorities. The court also considered whether the Tribunal had adequately explained its reasons for preferring certain evidence over other evidence.

The Court held that the Tribunal had made an error of law. Kirby and Heydon JJ found that the Tribunal's reasons did not demonstrate that it had properly grappled with the entirety of the evidence before it, particularly concerning the potential consequences of Mr Kong's alleged political activities. The judges emphasised the importance of tribunals providing clear and comprehensive reasons for their findings, especially when rejecting evidence that could be crucial to an applicant's claim for protection. The Court concluded that the Tribunal had failed to provide adequate reasons for its ultimate conclusion, thereby vitiating its decision.

The appeal was allowed, and the decision of the Administrative Appeals Tribunal was set aside. The matter was remitted to the Tribunal to be heard and determined by a different member.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established