Kong v Minister for Immigration - [2011] FMCA 583

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
Kong v Minister for Immigration & Citizenship and Another [2006] FMCA 851
Kong v Minister for Immigration [2007] HCA Trans 588
Hossain v Minister for Immigration and Citizenship (2010) 183 FCR 157
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Wong v Minister for Multicultural and Indigenous Affairs [2004] FCAFC 242
Lee & Ors v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 583
Decision Date: 29 July 2011

CaseChat Overview and Summary

The case of Kong v Minister for Immigration and Citizenship [2011] FMCA 583 involves the Applicant, Tian Le Kong, a citizen of China, challenging the decision of the Migration Review Tribunal (the Tribunal) that it lacked the jurisdiction to re-open and review an earlier decision to cancel his student visa. The Tribunal had previously affirmed the decision of a delegate of the Minister for Immigration and Citizenship to cancel the Applicant’s visa on the basis that he failed to meet condition 8202 of his visa. The Applicant sought judicial review of the Tribunal's decision dated 20 May 2011, arguing that the Tribunal had jurisdiction to review the earlier decision given the subsequent finding in Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 that condition 8202 was invalid.

The legal issues before the court were whether the Tribunal's decision that it lacked jurisdiction to re-open the case was affected by jurisdictional error and whether there was an issue estoppel preventing the Applicant from re-litigating the validity of the earlier Tribunal decision. The Applicant argued that the Tribunal should have re-opened the case due to the subsequent findings in Dai, while the Minister contended that the issue of the validity of the earlier decision had already been finally determined by the Federal Magistrates Court, the Federal Court, and the High Court.

The court found that the Tribunal's decision was not affected by jurisdictional error and dismissed the application for judicial review. The court reasoned that the Tribunal had already reviewed the earlier decision and the issue of its validity had been judicially determined by the Federal Magistrates Court, with subsequent appeals dismissed. The court held that issue estoppel prevented the Applicant from re-agitating the issue of the validity of the earlier decision. The court emphasized the importance of the finality of administrative decisions and the principle that once an issue has been finally determined, it cannot be re-litigated. The court concluded that the Tribunal's decision to find that it lacked jurisdiction to review the earlier decision was correct and grounded in sound principle.

The final orders of the court were that the proceeding should be dismissed with costs, as the Tribunal's decision was not affected by jurisdictional error and the court had no jurisdiction to interfere under s.474 of the Migration Act 1958 (Cth).

Orders