Maan v Minister for Immigration and Citizenship [2009] FCAFC 150

FEDERAL COURT OF AUSTRALIA

Maan v Minister for Immigration and Citizenship [2009] FCAFC 150

MIGRATION – appeal from Federal Magistrates Court – appellant an Indian national undertaking tertiary studies in Australia – Migration Review Tribunal affirmed decision to cancel the appellant's Subclass 573 Higher Education Sector visa – Migration Regulations 1994 – whether pre-1 July 2007 or post-1 July 2007 version of Visa Condition 8202 applicable – transitional provision – post-1 July 2007 version of Visa Condition 8202 (3)(b) provides that student fails to comply with visa if education provider certifies student has not achieved satisfactory course attendance – certification by education provider that appellant failed to comply with minimum attendance requirements – failure by education provider to specify period of time relevant to breach of Visa Condition – appellant claimed depression and bereavement of family member as the main bases for failure to attend – whether exceptional circumstances beyond the control of the appellant existed – r 2.43(2) Migration Regulations 1994 Held: appeal dismissed with costs, no jurisdictional error in the reasoning of the Federal Magistrate identified. Education Services for Overseas Students Act 2000 (Cth) ss 19, 20 Migration Act 1958 (Cth) ss 116(1)(b), 474(2) Migration Regulations 1994 (Cth) Sch 8 subcl 8202(3) Migration Amendment Regulations 2007 (Cth) regs 5, 2.43(2)(b)(ii)(B) Migration Amendment Regulations 2007 (No 5) (Cth) r 5 Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited Brar v The Minister for Immigration and Citizenship (2008) FMCA 1026 cited Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 cited R v Kelly (Edward) [2000] 1 QB 198 cited S157/2002 v Commonwealth (2003) 211 CLR 476 cited Baker v The Queen (2004) 223 CLR 513 at 573 cited Ho v Professional Services Review Committee No 295 [2007] FCA 388 cited National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 Standard 11