Kong v Minister for Immigration and Citizenship [2011] FCA 1345

FEDERAL COURT OF AUSTRALIA

Kong v Minister for Immigration and Citizenship [2011] FCA 1345 Citation: Kong v Minister for Immigration and Citizenship [2011] FCA 1345

Appeal from: Kong v Minister for Immigration and Citizenship [2011] FMCA 583

Parties: TIAN LE KONG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

File number: NSD 1339 of 2011

Judge: FLICK J

Date of judgment: 25 November 2011

Catchwords: ADMINISTRATIVE LAW – jurisdictional error – Tribunal declines jurisdiction by reason of earlier decision – application for review dismissed PRACTICE AND PROCEDURE – finality in decision-making – res judicata – the same cause of action – substance and not form – availability of Anshun estoppel in judicial review proceedings – special circumstances not made out by being unrepresented

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Constitution, s 75(v) Federal Court Rules 2011, r 40.02(b) Migration Act 1958 (Cth) s 116 Migration Regulations 1994 (Cth) cl 2.43, condition 8202

Cases cited: Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306, cited Applicant M117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838, cited Applicants S311 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 45, considered BC v Minister for Immigration and Multicultural Affairs [2001] FCA 393, cited BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669, 67 ALD 60, considered Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, considered Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33, 75 NSWLR 245, referred to Christiansen v Social Security Appeals Tribunal [2010] FCA 1146, 53 AAR 166, cited Dai v Minister for Immigration and Citizenship [2007] FCAFC 199, 165 FCR 458, considered Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510, cited Gibbs v Kinna [1998] VSCA 52, [1999] 2 VR 19, referred to Hossain v Minister for Immigration and Citizenship [2010] FCA 161, 183 FCR 157, referred to Jackson v Purton [2011] TASSC 28, cited Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, 145 FCR 1, considered Kong v Minister for Immigration [2006] FMCA 851, cited Kong v Minister for Immigration and Multicultural Affairs [2007] HCA Trans 588, cited Kong v Minister for Immigration and Citizenship [2011] FMCA 583, cited Ma v Minister for Immigration and Citizenship [2007] FCAFC 69, cited Metwally v University of Wollongong (No 2) (1985) 60 ALR 68, referred to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597, considered MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501, cited MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1387, cited MZWKJ v Minister for Immigration and Multicultural Affairs [2006] FCA 761, cited Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76, 248 FLR 193, referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, considered Ramsay v Pigram (1968) 118 CLR 271, cited S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65, cited S307 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 650, cited Solak v Registrar of Titles [2011] VSCA 279, cited Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192, 178 ALR 677, considered Stuart v Sanderson [2000] FCA 870, 100 FCR 150, cited SZBJM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 404, referred to SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862, cited SZGGS v Minister for Immigration and Citizenship [2008] FCA 973, cited SZHEW v Minister for Immigration and Citizenship [2009] FCA 783, cited SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167, 180 FCR 438, cited Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342, referred to Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054, 132 FCR 222, cited Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406, considered White v Thompson [2011] NSWCA 161, cited Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242, 146 FCR 10, considered Campbell E, 'Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation' (1994) 20 Monash University Law Review 21 Handley, Justice K R, 'Res Judicata: General Principles and Recent Developments' (1999) 18 Australian Bar Review 214