Dai v Minister for Immigration and Citizenship [2007] FCAFC 199

FEDERAL COURT OF AUSTRALIA

Dai v Minister for Immigration and Citizenship [2007] FCAFC 199

MIGRATION – student visa – condition of visa required visa holder to achieve an academic result certified by education provider as satisfactory with no time limit – no enforceable duty on education provider to certify – whether condition capable of breach by visa holder – whether condition valid Education Services for Overseas Students Act 2000 (Cth), s 33, s 44 Education Services for Overseas Students Regulations 2001 (Statutory Rule SR 2001 No. 96), reg 4.01 Migration Act 1958 (Cth), ss 41(1), 116(1), 116(3), 504 Migration Legislation Amendment (Overseas Students) Act 2000 Migration Regulations 1994, Schedule 8 condition 8202, reg 2.43(2)(b) National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students

Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs, [2006] FCA 1819; (2006) 96 ALD 309, reversed Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 71 applied Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342; (1993) 46 FCR 494 cited Conroy v Shire of Springvale and Noble Park [1959] VR 737 distinguished Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 discussed Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53 cited Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 applied Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 discussed Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 cited One.Tel Ltd v Australian Communications Authority (2000) 176 ALR 529 cited Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 followed Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 followed Vanstone v Clark (2005) 147 FCR 299 cited Aronson M and Dyer B, Judicial Review of Administrative Action, (2nd ed, LBC Information Services, 2000) Pearce D and Argument S, Delegated Legislation in Australia, (3rd ed, LexisNexis Butterworths, 2005) WEN BI DAI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL NSD 30 OF 2007