Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578

FEDERAL COURT OF AUSTRALIA

Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578

MIGRATION – visa – cancellation – student visa – condition that holder must satisfy course requirements – applicant had poor attendance record and made poor academic progress – whether tribunal obliged to make findings as to applicant's bona fides and as to whether applicant had flouted condition – whether failure to take into account relevant considerations – whether tribunal erred in applying standard of proof on balance of probabilities – whether tribunal failed to exercise discretion

Migration Act 1958 (Cth) ss 116(1)(b), 368(1), 476, 499 Migration Regulations 1994 (Cth) Sch 8 item 8202 Migration Legislation Amendment Act (No. 1) 1998 (Cth) Veterans Entitlements Act 1986 (Cth) s 120(4) Migration Series Instruction no 248 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 applied Kim v Witton (1995) 59 FCR 258 considered Baidakova v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Katz J, 12 November 1998, unreported) considered Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 (1999) 84 FCR 411 referred to Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 referred to Repatriation Commission v Smith (1987) 15 FCR 327 referred to Repatriation Commission v Cooke (1998) 90 FCR 307 referred to NAVIN SHRESTHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 219 of 2001 GRAY J 9 NOVEMBER 2001 MELBOURNE