Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

FEDERAL COURT OF AUSTRALIA

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

MIGRATION – appeal – visas – student visa – cancellation of visa – conditions on which visa granted – breach of conditions of visa – where visa must be cancelled if 'prescribed circumstances' exist – notice issued under Education Services for Overseas Students Act 2000 (Cth) – appellant in breach of conditions – breach reported to Department of Immigration and Multicultural and Indigenous Affairs – delegate of the Minister for Immigration and Multicultural and Indigenous Affairs found appellant in breach of Condition 8202(3)(a) which required appellant to attend 80 percent of contact hours at secondary school – appellant sought review in Migration Review Tribunal – Migration Review Tribunal disagreed with delegate's decision but concluded that the appellant breached Condition 8202(3)(b) in that the appellant had not achieved an academic result 'at least satisfactory' – whether a letter from the appellant's secondary school offering readmission to the appellant was certification that the appellant had achieved an academic result that was 'at least satisfactory' – whether delegate had erred by inquiring whether the appellant had made 'satisfactory academic progress' – interpretation – whether substantial compliance with Condition 8202 sufficient.

Migration Act 1958 (Cth) ss 116, 137J, 137K Education for Overseas Students Act 2000 (Cth) ss 19, 20 Migration Regulations 1994 (Cth) reg 2.43 Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 distinguished Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 followed Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 followed Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 cited Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 cited Ji v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 207 cited