Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575

FEDERAL COURT OF AUSTRALIA

Nong v Minister for Immigration & Multicultural Affairs

[2000] FCA 1575

MIGRATION – review of decision by Migration Review Tribunal affirming cancellation of student visa – whether visa subject of cancellation extension of earlier visa or new visa – whether Tribunal to decide whether decision to cancel visa correct or preferable decision at time of its decision or at time of primary decision – whether compliance with requirement that student attend at least 80% of classes and tutorials scheduled for course only determinable at conclusion of course. COSTS – whether costs should be ordered in favour of successful party where ground on which party succeeded raised by Court. WORDS & PHRASES – "scheduled for the course". Migration Act 1958 (Cth), ss 5(1), 28, 29(1), 30(2)(a), 37A(2), 68(3), 82(7), 116(1), 116(3) Migration Regulations 1994 (Cth), reg 2.43(2)(b), cl 560.213 of Sch 2, conditions 8105 & 8202 of Sch 8 Migration Amendment Regulations 1998 (No. 10) (Cth), regs 2 & 3, items 2 & 33 of Sch 1 Pradhan v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 91 referred to Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 referred to Saraswati v The Queen (1991) 172 CLR 1 referred to MANH CHIEN NONG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 91 of 2000 KATZ J 6 NOVEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 91 of 2000

BETWEEN: MANH CHIEN NONG

APPLICANT

AND: MINISTER FOR IMMIGRATION

& MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: KATZ J

DATE OF ORDER: 6 NOVEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Migration Review Tribunal be set aside. 2. The matter of the cancellation of the applicant's student visa be referred to the Migration Review Tribunal for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.