FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Kwan [2002] FCAFC 380

MIGRATION – orders by consent setting aside judgment of primary judge – no question of principle.

Federal Court of Australia Act 1976 (Cth) s 25(2B)(b). 

Federal Court Rules O 35 r 10A

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v KAR LAM KWAN

V260 of 2002

BLACK CJ, NORTH AND WEINBERG JJ

27 NOVEMBER 2002

MELBOURNE

On appeal from a single judge of the Federal Court of Australia

THE COURT ORDERS BY CONSENT THAT:

1. The judgment and orders of the Honourable Justice Finkelstein dated 23 April 2002 be set aside. 

2. In lieu thereof it be ordered that:

(a)         the application for an order of review of the decision of the Migration Review Tribunal dated 9 October 2001 be dismissed; and

(b)        there be no order as to costs of the application.

3. There be no order as to costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

1                     The appellant has appealed from orders made by a judge of this Court granting an application for judicial review of a decision of the Migration Review Tribunal affirming a decision by a delegate of the Minister to refuse the respondent’s application for a temporary student visa.

2                     The appellant seeks orders in the following terms:

“1.       That the judgment and orders of The Honourable Justice Finkelstein dated 23 April 2002 be set aside. 

2.         That in lieu thereof it be ordered that:

(a)   The application for an order of review of the decision of the Migration Review Tribunal dated 9 October 2001 be dismissed; and

(b)    There be no order as to costs of the application.

3.         That there be no order as to costs of the appeal.”

3                     The respondent has, through his solicitors, indicated that he has completed his studies in Australia and he has returned to Hong Kong, and that he consents to the orders proposed by the Minister.

4                     The appellant has filed written submissions contending that the learned primary judge was in error in two respects.  First, as to the operation of the provisions of the Migration Act 1958 (Cth) that form the basis of the decision, and secondly, as to the operation in a case such as this of s 474 of the Migration Act. 

5                     The Court has power to make an order by consent disposing of an appeal to the Court:  Federal Court of Australia Act 1976 (Cth), s 25(2B)(b).  The order may be made “in accordance with the terms of a written consent of the parties to a proceeding, or their representatives on the record”.  The order has the same force and validity as if it had been made after a hearing by the Court:  Federal Court Rules, O 35 r 10A.

6                     We have read the outline of submissions of the appellant and note the Minister’s submission that the decision of the primary judge about the construction of the relevant provisions of the Migration Act has not been followed in other cases and on one occasion has been said to be “plainly wrong”:  Zou v Minister for Immigration & Multicultural & Indigenous Affairs  [2002] FCA 1126 at [30]-[31]; see also Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772 at [11]; Siddique v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1226 at [20]-[25].  In a judgment given after the judgment under appeal, the learned primary judge noted the omission of a reference, in the judgment under appeal, to a provision of the legislation, which he described as favouring the Minister’s argument:  Habib v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1003 at [6]. 

7                     It is, however, unnecessary to express an opinion about the approach taken by the learned primary judge on the construction point because the decision cannot stand consistently with the subsequent decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 about the effect of s 474 of the Migration Act where, as here, there is a privative clause decision. 

8                     In these circumstances, we are prepared to make the orders sought by consent. 

Associate:

Dated:              27 November 2002