Kong v Minister for Immigration
[2011] FMCA 583
•29 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KONG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 583 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal had jurisdiction to re-open an earlier decision of the Migration Review Tribunal where that decision had been the subject of judicial determination – whether there was an issue estoppel that prevented the parties from re-agitating the issue of the validity of an earlier decision of the Migration Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116; 347; 348; pt.8 div.2 Migration Regulations 1994 (Cth), condition 8202 of Schedule 8 |
| Dai v Minister for Immigration and Citizenship and Another [2007] 165 FCR 465 Jayasinghe v Minister for Immigration and Citizenship & Anor (1997) 76 FCR 301 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) |
| Applicant: | TIAN LE KONG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1102 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 July 2011 |
| Date of Last Submission: | 27 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mark Gibian |
| Solicitors for the Applicant: | Parramatta Community Justice Clinic |
| Counsel for the Respondent: | Mr Patrick Knowles |
| Solicitors for the Respondent: | Mr Adam Wood (Clayton Utz) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1102 of 2011
| TIAN LE KONG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated and handed down on 20 May 2011.
The Tribunal decided that it did not have jurisdiction to review an earlier decision of the Tribunal, dated 30 March 2005, which affirmed a decision of a delegate of the First Respondent to cancel the Applicant’s student visa.
Background
The Applicant is a citizen of China who was issued with a Student (Temporary) (Class TU) (Subclass 574) visa on 25 August 2003.
On 6 May 2004, the Applicant’s Student Visa was cancelled by a decision of a delegate of the First Respondent (the ‘Delegate’) on the basis that the Applicant failed to meet condition 8202 of his visa.
On 30 March 2005, the Migration Review Tribunal (the ‘Tribunal’). affirmed the Delegate’s decision to cancel the Applicant’s visa was affirmed by the Second Respondent.
The Tribunal’s decision was the subject of judicial review and determination by this Court and the Tribunal’s decision was found not to be affected by jurisdictional error. That decision was the subject of an appeal to the Federal Court of Australian and the High Court of Australia, both of which were dismissed.
On 8 January 2008, the Applicant applied for a protection visa. On 29 February 2008, the Applicant’s application for a protection visa was refused by a delegate of the First Respondent.
On 9 May 2011, the Applicant lodged a further application for review with the Tribunal. In a covering letter attached to the application, the Applicant’s representative submitted that the original decision of the Tribunal had been ‘rendered invalid’ by the decisions in Dai v Minister for Immigration (2007) 165 FCR 458 and Hossain v Minister for Immigration (2010) 183 FCR 157.
On 20 May 2011, the Tribunal decided that it did not have jurisdiction to re-open and review the earlier decision of the Tribunal.
On 30 May 2011 the Applicant filed an application for judicial review of the Tribunal’s decision in this Court. It is that application that is the subject of the proceeding before this Court.
The Tribunal’s Decision
The Tribunal noted that the question that arose before it was whether it had jurisdiction to review the Delegate’s decision on the basis of the application for review lodged on 27 April 2011.
The Tribunal noted that its jurisdiction arose if an application was properly made under s.347 of the Act for review of an MRT-reviewable decision. The Tribunal noted that s.338 of the Act and Regulation 4.02(4) of the Migration Regulations 1994 (Cth) (“the Regulations”) set out the various decisions that are Migration Review Tribunal reviewable decisions (“MRT-reviewable decision”). The Tribunal noted that a decision to cancel the Applicant’s visa under s.116 of the Act was covered by s.338(3) of the Act. However, the Tribunal noted that s.327(1)(b) requires that an application for review be lodged with the Tribunal within the prescribed period set out in Regulation 4.10 of the Regulations.
The Tribunal noted that where it receives a valid application for review of an MRT -reviewable decision and it has carried out its statutory duty to review the decision under s.348 of the Act, the decision is no longer an MRT -reviewable decision under s.338 of the Act.
The Tribunal noted that it carefully considered all the circumstances, including the following:
· “That the Federal Court judgments of Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 and Hossain v Minister for Immigration and Citizenship [2010] FCA 161, were decided in 2007 and 2010, well after the Tribunal finalised its decision of 30 March 2005;
· The applicant’s subsequent unsuccessful protection and bridging visa applications;
· The fact that it may still be possible for the applicant to seek judicial review of the Tribunal’s decision of 30 March 2005 under s.486A of the Migration Act;
· The fact that if the decision were to be judicially reviewed and remitted to the Tribunal, the applicant’s visa granted on 25 August 2003 would have expired in any case;
· The effect of affirming the previous cancellation on the applicant’s ability to apply for another visa without leaving the country.”
The Tribunal found that because it had already discharged its functions under s.348 to review the Delegate’s decision, dated 6 May 2004, and the Tribunal’s decision had already been the subject of judicial review and determination, it is no longer an MRT -reviewable decision under s.338. Accordingly, the Tribunal found that it no longer has jurisdiction in relation to that decision.
The Proceeding Before this Court
The issue before this Court is whether or not the Tribunal erred in finding that it had no jurisdiction to re-open the case.
It is common ground that the decision of the Migration Review Tribunal, dated 30 March 2005, contained an error of the nature ultimately found to exist in Dai v Minister for Immigration and Citizenship and Another [2007] 165 FCR 465 (“Dai”). In Dai, the Full Court of the Federal Court of Australia found that condition 8202 in the form relevant at the time of the Applicant’s student visa was not valid.
It is common ground that the Migration Review Tribunal’s decision, dated 30 March 2005, was the subject of judicial review and determination in the Federal Magistrates Court (Kong v Minister for Immigration & Citizenship and Another [2006] FMCA 851) the Federal Court (QUD 199 of 2006 Order dated 3 November 2006, per Collier J) and the High Court of Australia (Kong v Minister for Immigration [2007] HCA Trans 588).
The decision of the Federal Magistrates Court, dated 14 June 2006, found that the Migration Review Tribunal’s decision, dated 30 March 2005, was not affected by jurisdictional error and dismissed the application. On 3 November 2006, the Federal Court of Australia dismissed an appeal from the decision of the Federal Magistrates Court. On 4 October 2007, the High Court of Australia dismissed an application for special leave to appeal from the decision of the Federal Court of Australia.
The Applicant was represented by Mr Gibian of counsel. Mr Gibian contended that because the decision of the Migration Review Tribunal, dated 30 March 2005, was in fact affected by jurisdictional error, there had been no valid review and the Tribunal was incorrect to find that it had no jurisdiction to review the Delegate’s decision.
In support of that contention, Mr Gibian referred the Court to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”). In Bhardwaj, the High Court of Australia found that until it had conducted a valid review, a Tribunal had power to revisit a decision it had made and to correct it. However, this is not the circumstances of this case. As stated above, the Migration Review Tribunal’s decision, dated 30 March 2005, was the subject of subsequent judicial review and determination by this Court on 14 June 2006. The Court’s determination was that the Tribunal’s decision was not affected by jurisdictional error. In the circumstances, the issue as to whether the decision of the Migration Review Tribunal, dated 30 March 2005, was affected by jurisdictional error has been judicially determined. As stated above, subsequent appeals in respect of that decision to the Federal Court of Australia and the High Court of Australia were dismissed.
The Applicant submitted that the decision in Dai meant that the Migration Review Tribunal’s decision, dated 30 March 2005, was affected by jurisdictional error because condition 8202 relevant to the Applicant’s student visa, was invalid. However, that issue properly belonged to the subject of that litigation and which the parties, exercising reasonable diligence might have put forward at the time of that litigation (see Wong v Minister for Multicultural and Indigenous Affairs [2004] FCAFC 242 at [38] (“Wong”); Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”)).
Accordingly, there has been a final judicial determination of the issue between the parties as to whether or not the decision of the Migration Review Tribunal, dated 30 March 2005, was affected by jurisdictional error. Subsequent appeals to the Federal Court and the High Court with respect to that decision were dismissed. In the circumstances, the Applicant is estopped from asserting the contrary.
The issue whether or not the Migration Review Tribunal’s decision, dated 30 March 2005, is affected by jurisdictional error is intrinsically bound up in the Applicant’s present contention to this Court that the Tribunal’s decision dated 20 May 2011 was affected by jurisdictional error by failure to “re-open” and review the Delegate’s decision dated 6 May 2004.
In light of the issue estoppel that operates to prevent the Applicant from asserting that the Migration Review Tribunal’s decision, dated 30 March 2005, is affected by jurisdictional error, the Applicant cannot rely on that issue in support of its present application for judicial review of the Tribunal’s decision dated 20 May 2011, where the Tribunal found that it is functus officio and that it has no further jurisdiction to review the Delegate’s decision.
Even if the question of whether or not condition 8202 of the Applicant’s student visa was valid has not actually been litigated, the principles enunciated in Anshun require that there be special circumstances to permit the Applicant to raise that issue in a subsequent proceeding (see Wong at [38]; Anshun).
The Applicant submitted that special circumstances existed in that it was not unreasonable for the Applicant not to have raised the validity of condition 8202 of his student visa in his application to the Migration Review Tribunal lodged on 13 May 2004 and determined on 30 March 2005.
In response to that proposition, counsel for the first respondent submitted that the Applicant had been legally represented and that it was always open to the Applicant to challenge the decision of the Migration Review Tribunal, dated 30 March 2005, on the basis that condition 8202 was invalid.
I accept the submissions of the first respondent. I am not satisfied that there are any special circumstances that exist that would permit the Applicant to raise the validity of condition 8202 in a subsequent proceeding.
I do note that type of Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action insofar as the Anshun estoppel is aimed at avoiding abuse of process. I note, however, the comments of the Full Court of the Federal Court of Australia in Wong where the Court stated at [39]:
“…where the beneficiary of such a principle is aMinister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance”.
However, special circumstances are only an exception to Anshun estoppel and are not an exception to issue estoppel or res judicata.
In the circumstances, I am satisfied that the issue of whether or not the decision of the Migration Review Tribunal, dated 30 March 2005, is affected by jurisdictional error has been the subject of judicial determination and in respect of which there is therefore a res judicata and issue estoppel.
Whilst I accept the submission of counsel for the Applicant that a res judicata does not operate in respect of the Tribunal’s decision, dated 20 May 2011, I am satisfied that there is an issue estoppel between the parties in respect of the issue of whether or not the decision of the Migration Review Tribunal, dated 30 March 2005, is affected by jurisdictional error. To this end, I note the comments of the Full Court of the Federal Court in Wong at [36] as follows:
“36 The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’) and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.”
Moreover, I note the statement of principle by Street CJ in R v Unger [1977] 2 NSWLR 990 at 995 where his Honour stated as follows:
“There is no difference in principle between a subsequent judicial decision which has the effect of exposing a prior misconception in relation to a principle of law which was wrongly regarded as well founded at the time of the trial, and a subsequent judicial decision exposing the invalidity of regulations that were wrongly treated as valid at the time of the trial. The trial having been concluded and the time for appeal having gone by, the general principle is that the matter is regarded as at an end. It is to be borne in mind that the effect of a conviction in a criminal court, no less that a verdict and judgment in a civil court, is to merge in that conviction or judgement, as the case may be, all of the material upon which it proceeded.
…
This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that the legal principle is contently evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions … This finality of decision in each individual case leave the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved.”
The Tribunal’s decision to find that it had no jurisdiction to review the decision of the Delegate made on 6 May 2004 is correct and is grounded in sound principle. The community has a legitimate expectation and entitlement to the finality of administrative decisions (Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at 495 per McHugh J).
The Migration Review Tribunal received a valid application for review of an MRT -reviewable decision on 13 May 2004 and duly conducted a review of the decision of the Delegate.
The Federal Magistrates Court’s decision dated, 14 June 2006, determined that the Migration Review Tribunal’s decision, dated 30 March 2005, was not affected by jurisdictional error. Subsequent appeals challenging the correctness of that decision were dismissed. The Migration Review Tribunal has no jurisdiction to review the Delegate’s decision twice (see Jayasinghe v Minister for Immigration and Citizenship & Anor (1997) 76 FCR 301).
In the circumstances, the issue of whether or not the Migration Review Tribunal’s decision, dated 30 March 2005, is affected by jurisdictional error has been judicially determined. As stated above, issue estoppel prevents the parties from re-agitating that issue.
In light of the Court’s findings above, there is no need to consider the utility or otherwise that may operate on the Court’s discretion as to whether or not to grant the relief sought by the Applicant.
Accordingly, the ground of the application is not made out.
The Tribunal’s decision is not affected by jurisdictional error and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding should be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 29 July 2011
3
11
3