Peng v Minister for Immigration and Multicultural Affairs [2000] FCA 1672

FEDERAL COURT OF AUSTRALIA

Peng v Minister for Immigration & Multicultural Affairs [2000] FCA 1672

MIGRATION – review of decision of Migration Review Tribunal affirming decision not to grant a Student (Temporary) Class TU Subclass 560 Visa – where applicant arrived in Australia two days before date of expiration of original visa – where applicant applied for new student visa, but was refused on grounds that condition 8202 of original student visa had not been substantially complied with – where registered course start and finish dates uncertain – whether Minister is obliged to take into account the applicant's explanation for failure to comply when determining whether there has been substantial compliance, – whether remitting application to the Migration Review Tribunal would be futile –whether substantial compliance with each condition, rather than substantial compliance with the conditions as a whole, is required – whether arrangements seeking to comply with an equivalent condition of a future visa, can amount to substantial performance of the condition of the original visa since expired – determination on whether there has been a failure to comply with condition 8202 at a certain time, can only be made at the completion of the course Migration Act 1958 (Cth) s 116(1)(b) Migration Regulations 1994 (Cth) reg 1.03, 2.43(2)(b), cl 560.213, cl 560.222, condition 8202 of Sch 8

Kim v Witton (1995) 59 FCR 258 applied Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381 applied Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 considered KANG JIE PENG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 830 OF 2000 HELY J 21 NOVEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 830 OF 2000

BETWEEN: KANG JIE PENG