Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural & Indigenous Affairs v Li [2004] FCAFC 42 MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V HONG JIA LI N2498 OF 2003 HEEREY, SUNDBERG & CRENNAN JJ 2 MARCH 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N2498 OF 2003
On appeal from a judgment of a single judge of the Federal Court
BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPLICANT
AND: HONG JIA LI
RESPONDENT
JUDGE: HEEREY, SUNDBERG & CRENNAN JJ
DATE OF ORDER: 2 MARCH 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Tribunal is affirmed and the decision of the primary Judge is set aside. 3. The respondent pay the Minister's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N2498 OF 2003
On appeal from a judgment of a single judge of the Federal Court
BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPLICANT
AND: HONG JIA LI
RESPONDENT
JUDGE: HEEREY, SUNDBERG & CRENNAN JJ
DATE: 2 MARCH 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The Migration Review Tribunal affirmed a decision made by a delegate of the Minister to cancel the respondent's sub-class 560 (Student) visa. The Tribunal did so on the ground that the respondent had breached condition 8202 by not achieving the prescribed attendance rate (80 per cent) of lectures and failing to achieve an academic result certified by the education provider to be at least satisfactory. 2 The primary judge set aside this decision. His Honour found that the Tribunal made a jurisdictional error by failing to address a "central issue" in the respondent's claims, namely her assertion that on occasions she had been marked as absent because she had been more than ten minutes late for the commencement of a class: Hong Jia Li v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1432. 3 On this appeal the Minister contends that there was no jurisdictional error because this particular evidence could not have been determinative of the issues before the Tribunal. In any event, it is said that the finding could not have affected the result, because breach of condition 8202 was otherwise made out.
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