Minister for Immigration v Kang - [2012] FMCA 732

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v KANG & ANOR

[2012] FMCA 732

MIGRATION – Whether false document relied on to obtain student visa – whether false document relied on to obtain Trade Recognition Australia assessment – “Bogus document” – use of considered – whether document provided to an officer of the Department – whether inaccuracy in a Notice of Intention to Consider Cancellation is fatal to an attack on the failure of the Tribunal to exercise jurisdiction – whether the Minister is excluded from seeking relief by s.474 of the Migration Act 1958 – whether express exclusion or necessary implication required to exclude a party by a privative clause – decisions in Brar v Minister for Immigration & Anor [2011] FMCA 435 and Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 considered.

Commonwealth of Australia Constitution Act, s.75
Migration Act 1958 (Cth), ss.5, 97, 99, 100, 101, 102, 103, 107, 109, 359A, 359AA, 474
Migration Regulations 1994, reg.2.41

Applicant:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Visa holder:

JAGMEET SINGH KANG

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1796 of 2011

Judgment of:

Turner FM

Hearing date:

17 July 2012

Date of Last Submission:

17 July 2012

Delivered at:

Melbourne

Delivered on:

24 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr Horan

Solicitors for the Applicant:

Clayton Utz

Counsel for the Visa holder:

Mr Young

Solicitors for the Visa holder:

G & S Law Group

ORDERS

The decision of the Migration Review Tribunal dated 24 November 2011 be removed to this Court to be quashed.
A writ of mandamus issue requiring the Migration Review Tribunal to determine the matter according to law, including making findings on the matters in the Notice of Intention to Consider Cancellation; in particular:
(a)That the visa holder did not comply with ss.101(b) and 103 of the Migration Act 1958 because, in support of his application and in order to satisfy legislative requirements for the grant of a visa, the visa…

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: [2012] FMCA 732
Decision Date: 24 August 2012

CaseChat Overview and Summary

In the matter of Minister for Immigration v Kang, the parties were the Minister for Immigration and the visa holder, Mr Kang. The dispute involved the interpretation of section 474(1) of the Migration Act, which provides that decisions under the Act are final, conclusive, and not subject to judicial review, unless expressly stated or necessarily implied. The High Court was tasked with determining whether the Minister could seek judicial review of a decision made by the Migration Review Tribunal, despite the privative clause.

The legal issue before the court was whether section 474, as interpreted in Plaintiff S157, prohibited the Minister from seeking judicial review of a decision of the Tribunal. The court held that section 474 did not prevent the Minister from seeking judicial review when the Tribunal had failed to exercise its jurisdiction or had acted beyond its jurisdiction. The court relied on the principle that privative clauses are construed to preserve the ordinary jurisdiction of a superior court to grant relief by way of prerogative writs in cases of jurisdictional error. Therefore, the court found that the Minister could seek judicial review if the Tribunal had acted beyond its jurisdiction or failed to exercise its jurisdiction.

The court further held that there was nothing in section 474 or in the decision of Plaintiff S157 that necessarily implied that the Minister was excluded from seeking relief when the Tribunal failed to exercise or exceeded its jurisdiction. The court concluded that the Minister could seek judicial review in such cases. The court ordered that the decision of the Migration Review Tribunal dated 24 November 2011 be removed to the court to be quashed, and a writ of mandamus be issued requiring the Tribunal to determine the matter according to law, including making findings on the matters in the Notice of Intention to Consider Cancellation. The court also ordered that the Tribunal consider whether or not to exercise the discretion to cancel the visa.

Orders

Orders of the court

The decision of the Migration Review Tribunal dated 24 November 2011 be removed to this Court to be quashed.

A writ of mandamus issue requiring the Migration Review Tribunal to determine the matter according to law, including making findings on the matters in the Notice of Intention to Consider Cancellation; in particular:

(a) That the visa holder did not comply with ss.101(b) and 103 of the Migration Act 1958 because, in support of his application and in order to satisfy legislative requirements for the grant of a visa, the visa holder made incorrect statements, provided incorrect information, and caused a bogus document to be given to the Department; and

(b) Including considering whether or not to exercise the discretion to cancel the visa.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 474(1) of the Act provides as follows:Decisions under Act are final(1)A privative clause decision:(a)is final and conclusive; and(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Mr Young submits that the first issue for decision is whether s.474, as interpreted in Plaintiff S157 (supra), prohibits the Minister from seeking judicial review of a decision of the Tribunal? The Court has decided that it does not. Section 474 was interpreted in Plaintiff S157 (supra) at [76] as previously referred to. It was held in Public Service Association of South Australia Respondent and Federated Clerks' Union of Australia, South Australian Branch and Anor 173 CLR 132 at p.160 per Dawson and Gaudron JJ., that:“Privative clauses such as s. 95 of the Act are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied[5]. Thus, a clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction”. [5] See, e.g., Clancy v. Butchers' Shop Employés Union (1904), 1 C.L.R. 181, at p. 204, per O'Connor J.; Hockey v. Yelland (1984), 157 C.L.R. 124, at p. 130, per Gibbs C.J., and (1984) 157 C.L.R., at p. 142, per Wilson J. See also Anisminic, [1969] 2 A.C. at p. 170, per Lord Reid.(emphasis added) It was held in Darling Casino Limited Plaintiff and New South Wales Casino Control Authority and Ors 191CLR 602 at p.603 per Gaudron and Gummow JJ, Brennan CJ, Dawson and Toohey JJ expressing no opinion:“The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. Privative clauses, whether in Commonwealth or State legislation, are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. But if the intention is clear a privative clause in a valid State enactment may preclude review for errors of any kind. If it does, the decision in question is entirely beyond review so long as it satisfied the principle stated in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 617-618”. In conformity with the above decisions, the Court will not interpret the provisions in a statute in a way that take a right away from a person, including the Minister, other than to the extent that it is expressly stated or necessarily to be implied that the right has been removed. Here there is nothing stated in s.474 or Plaintiff S157 (supra) or necessarily to be implied therefrom, that the Minister does not have the right to take action pursuant to s.474. It cannot necessarily be implied that the Minister is excluded from s.474 from seeking relief where the Tribunal fails to exercise or exceeds jurisdiction.

Ratio Decidendi

Legal Principle Established

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