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[2002] FCAFC 380
appellant. By consent, the judgment and orders of Finkelstein J were set aside; the application for review of the Migration Review Tribunal’s decision was dismissed, with no order as to costs of the...
2 cited instruments linked from this judgment.
The Full Court did not decide the underlying dispute about how the Migration Act provisions should be construed. Kwan had returned to Hong Kong and consented to the Minister's proposed appeal orders. The Court said it had power to make those orders by consent and that the primary judge's decision could not stand consistently with the Full Court's intervening decision in NAAV about s 474 and privative clause decisions. It therefore set aside the primary judgment and dismissed Kwan's judicial-review application, without making costs orders.
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2,263 words · generated 01/10/2026
This is a short procedural decision of the Full Court of the Federal Court of Australia, comprising Black CJ, North and Weinberg JJ, delivered on 27 November 2002. It arose from the Minister's appeal against orders made by Finkelstein J on 23 April 2002. The primary judge had granted judicial review of a Migration Review Tribunal decision affirming a delegate's refusal of Kar Lam Kwan's application for a temporary student visa ([1]).
By the time the appeal came before the Full Court, Kwan had completed his studies in Australia and returned to Hong Kong. His solicitors informed the Court that he consented to the orders proposed by the Minister ([3]). Those orders would set aside the primary judge's judgment, replace it with an order dismissing the judicial-review application, and make no order as to costs of either the application or appeal ([2]).
The Minister's written submissions raised two matters of alleged error: the construction of provisions of the Migration Act 1958 (Cth) underlying the decision, and the operation of s 474 of that Act ([4]). The Court did not resolve the first point. Instead, it referred to the Full Court's intervening decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, stating that the primary judge's decision could not stand consistently with NAAV's treatment of s 474 in a case involving a privative clause decision ([7]).
The Court then made the requested orders by consent. The judgment and orders below were set aside, the review application was dismissed, and neither the application nor appeal attracted a costs order ([8] and the formal orders). The reasons do not recount the detailed facts behind Kwan's visa application or explain the Tribunal's substantive reasoning. They are principally about the Court's power to dispose of an appeal by consent and the procedural consequence of NAAV for the decision under appeal.
The reasons identify two connected grounds for the result. First, the Court had a procedural power to make the orders by consent. It relied on s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth), which permits an order disposing of a proceeding in accordance with written consent from the parties or their representatives on the record. The Court also referred to O 35 r 10A of the Federal Court Rules, under which such an order has the same force and validity as one made after a hearing ([5]).
The consent was not treated as merely an informal indication of agreement. The judgment records that Kwan, through his solicitors, had consented to the orders sought, and the Court expressly stated that it was prepared to make them ([3], [8]). The statutory and rules-based provisions supplied the procedural authority for that disposal.
Second, the Court gave a legal context for why the Minister's proposed substitute orders were appropriate. The Minister had challenged the primary judge's approach to s 474. By the time the appeal was heard, the Full Court had delivered NAAV. The Court said the judgment under appeal could not stand consistently with that later Full Court decision where, as the Court described the situation, there was a privative clause decision ([7]). That is the Court's stated connection between NAAV and the outcome.
The limits of the reasoning are important. The Minister also challenged the primary judge's construction of other relevant Migration Act provisions. The Court discussed the Minister's submission that the primary judge's construction had not been followed elsewhere and had been described in Zou as “plainly wrong”, with references also to Gurung and Siddique ([6]). It did not endorse those characterisations as its own conclusions. It expressly said that it was unnecessary to express an opinion on the construction point ([7]). The decision therefore cannot properly be presented as an appellate ruling resolving that statutory-construction dispute.
Nor do the reasons provide a full analysis of s 474 or NAAV. They identify the conflict at a high level and use it to explain the disposition. The Court's formal orders were made by consent, and the judgment does not set out a contested hearing, a detailed application of statutory text to the visa facts, or a separate finding about the Tribunal's reasoning. The narrow account is that consent supplied the procedural route, while inconsistency with NAAV supplied the stated reason the primary decision could not remain in place.
The judgment's account of the law before the appeal is limited. It records that Finkelstein J had granted review, and that the Minister disputed both the construction of relevant Migration Act provisions and the treatment of s 474 ([1], [4]). It does not reproduce the primary judge's reasoning or identify the precise provisions, other than s 474, that formed the basis of the Tribunal and judicial-review decisions.
By the appeal hearing, several Federal Court decisions had addressed the construction point. The Minister submitted that the primary judge's approach had not been followed in other cases and that it had been called “plainly wrong” in Zou. The Full Court also referred to Gurung and Siddique, and to the primary judge's later observation in Habib that a legislative provision omitted from the earlier judgment favoured the Minister's argument ([6]). These references describe submissions and contextual material. They are not a ruling by this Full Court that those cases conclusively settled the construction issue.
The material legal development that the Full Court itself relied on was NAAV. The Court stated that the judgment under appeal could not stand consistently with NAAV's decision about the effect of s 474 where there is a privative clause decision ([7]). The immediate procedural consequence was that the original judgment was set aside and the review application dismissed. The Court did not formulate a general test for all privative clause decisions or explain the full reach of NAAV.
Accordingly, the “after” position that can be stated from this judgment is narrow. In this appeal, the primary judge's orders were replaced by an order dismissing the review application, and the Full Court grounded its view of inconsistency in NAAV. The judgment does not itself determine the broader meaning of the Migration Act provisions challenged by the Minister. It also does not explain whether, or how, its result would apply to a different statutory scheme, a different kind of administrative decision, or a case without party consent.
The case is therefore best understood as a procedural disposition with a limited reference to substantive doctrine, rather than as a comprehensive statement of migration-law principles. The judgment's own description, “no question of principle”, is consistent with that limited scope.
At [5], the Court explains that s 25(2B)(b) permits an order “in accordance with the terms of a written consent of the parties to a proceeding, or their representatives on the record”. In plain English, the Court could formally give effect to the parties' recorded agreement about how the appeal should be disposed of.
The same paragraph says the consent order has “the same force and validity as if it had been made after a hearing by the Court”. That means consent does not make the resulting order merely private or provisional. Under the rule the Court cites, it has the legal effect of a court order made following a hearing. The judgment identifies that proposition as arising from O 35 r 10A of the Federal Court Rules.
At [6], the Court summarises the Minister's account of other decisions on the statutory-construction question. The statement that the primary judge's approach had been called “plainly wrong” is expressly presented as part of the Minister's submissions, with Zou cited as the source. It should not be quoted as the Full Court's own finding. The Court's later express reservation at [7] confirms that it did not decide that construction issue.
At [7], the Court says: “It is, however, unnecessary to express an opinion about the approach taken by the learned primary judge on the construction point”. This is a direct limitation on the judgment's precedential significance. The Full Court did not approve, reject or independently settle that interpretation.
The same paragraph says that the decision “cannot stand consistently with” NAAV concerning s 474 and a privative clause decision. In plain English, the Full Court regarded the intervening Full Court decision as incompatible with leaving the primary judge's result in place. The reasons do not go further and unpack the full doctrinal reasoning in NAAV.
Finally, [8] records that the Court was “prepared to make the orders sought by consent”. That sentence links the Court's authority and the parties' agreement to the formal result. It is not a decision after a contested resolution of the visa merits.
The procedural reasoning is relevant where an appeal before the Federal Court is to be disposed of on terms agreed by the parties, or their representatives on the record. The case illustrates the Court identifying a statutory basis for making the order by consent and a rule addressing the effect of that order ([5]). It also illustrates a context in which the respondent's changed circumstances, completion of studies and return to Hong Kong, were recorded as part of the background to consent ([3]). The judgment does not say that those personal circumstances were a legal requirement for consent disposal.
The reference to NAAV is narrower. It concerns the Court's view of an earlier judicial-review decision involving a Migration Review Tribunal decision and a privative clause decision, in the context of s 474 of the Migration Act ([1], [7]). The decision may be relevant when explaining why this particular primary judgment was set aside after NAAV. The reasons do not provide enough detail to identify all factual or statutory conditions necessary for NAAV's rule to apply.
This judgment does not establish a general precedent that every challenge involving s 474 must be dismissed, or that a consent appeal will always result in dismissal of the underlying review application. Those propositions are not stated. The actual result depended on the parties' consent and the Court's stated view that the decision below could not stand consistently with NAAV.
It is also not a detailed precedent on the underlying eligibility criteria for a temporary student visa. The text gives no account of Kwan's course, visa criteria, evidence, or the Tribunal's reasons. Those matters cannot be reconstructed from this decision alone.
The supplied judgment contains no references to decisions made after 27 November 2002 that treated this case as precedent. It therefore does not support a claim that later courts followed, distinguished, criticised or overruled this particular decision.
The cases named in [6] are not later treatments of this Full Court judgment. Zou, Gurung and Siddique are cited in relation to the Minister's submissions about the primary judge's construction of the Migration Act. Habib is described as a later judgment by the same primary judge noting an omitted statutory provision. Those citations provide context for the argument made on appeal, but they do not show how later courts interpreted the present case.
NAAV is also not a later treatment of this judgment. It was a Full Court decision subsequent to the primary judgment but already available by the time the Kwan appeal was heard. The Court relied on it as the intervening authority said to make the primary decision inconsistent with the governing law on s 474 and privative clause decisions ([7]).
The defensible account is consequently modest: this judgment records how the Full Court disposed of one consent appeal in light of NAAV. A broader account of its subsequent citation history would require sources beyond the judgment provided here.
Several matters remain unanswered by the reasons. First, the Court does not explain the detailed construction dispute about the Migration Act provisions raised by the Minister. It expressly left that question open ([4], [7]). A reader cannot identify the exact competing textual arguments or infer that the Full Court adopted the Minister's construction.
Second, the judgment does not set out NAAV's reasoning. It gives only the conclusion that the primary judge's decision could not stand consistently with NAAV in a case involving a privative clause decision ([7]). The scope of that proposition, and how it might apply to other statutory provisions or decision types, cannot be derived from this judgment alone.
Third, there is no analysis of the practical or legal effect of Kwan's completed studies and return to Hong Kong beyond recording those facts and his consent ([3]). The reasons do not say that the appeal became moot, that the Court lacked jurisdiction, or that Kwan's circumstances dictated the result. Such conclusions would go beyond the text.
Fourth, the Court makes no costs order for either the original application or the appeal, but gives no reasons for that aspect of the agreed disposition ([2], [8]). The judgment does not explain whether the no-costs terms reflected a negotiated position, a particular rule, or some other consideration.
Finally, the decision does not assess the Tribunal's original decision on its merits. It supplies no findings about the visa application, the delegate's reasoning, or the evidence before the Tribunal. Its value is therefore primarily procedural and contextual: it shows the Court's use of consent-order powers and its stated reliance on NAAV to set aside the particular judgment under appeal.
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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. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court
Solicitor for the Appellant: Blake Dawson Waldron
Solicitor for the Respondent: Wayne Wong & Associates
Minister for Immigration & Multicultural & Indigenous Affairs
Kwan
By consent, the judgment and orders of Finkelstein J were set aside; the application for review of the Migration Review Tribunal’s decision was dismissed, with no order as to costs of the application or appeal.