Kong v MIMA

[2007] HCATrans 588

[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

Copyright in the High Court of Australia

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