Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167

FEDERAL COURT OF AUSTRALIA

Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167

MIGRATION – review of decision of Migration Review Tribunal – student (temporary) visa – applicant did not have a certificate from education provider that satisfactory academic result achieved – mitigating circumstances - whether applicant "complied substantially" with conditions of visa. Held: (Heerey & Sundberg JJ, Finkelstein J dissenting) the requirement of a certificate was not a condition that could be satisfied by substantial compliance Migration Regulations 1994 (Cth) cl 573.212 of Sch 2, condition 8202(3)

Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 approved Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 distinguished Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249 cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] cited Kim v Witton (1995) 59 FCR 258 distinguished Khan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 141 at [4] applied Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242 cited RUSHANTHA JAYASEKARA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR VID 862 OF 2006

HEEREY, SUNDBERG & FINKELSTEIN JJ

24 november 2006

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 862 OF 2006

BETWEEN: RUSHANTHA JAYASEKARA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGES: HEEREY, SUNDBERG & FINKELSTEIN JJ DATE OF ORDER: 24 november 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

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