Li v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1432

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1432

MIGRATION – judicial review – student visa – visa cancelled due to failure to meet attendance requirements – where failure to address significant aspects of applicant's claim amounts to jurisdictional error – where Tribunal raised but did not consider excuse for being marked absent. Migration Act 1958 (Cth) s 116 Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Migration Regulations 2.43

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 followed HONG JIA LI V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 871 OF 2003 BEAUMONT ACJ 28 NOVEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 871 OF 2003

BETWEEN: HONG JIA LI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT ACJ

DATE OF ORDER: 28 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Migration Review Tribunal dated 25 June 2003 be set aside, with costs. 2. The matter be remitted to the Migration Review Tribunal for reconsideration in accordance with law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 871 OF 2003

BETWEEN: HONG JIA LI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT ACJ

DATE: 28 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

Beaumont ACJ:

Introduction 1 This is an application for constitutional writs made under s 39B of the Judiciary Act 1903 (Cth) seeking relief in respect of a decision of the Migration Review Tribunal ('the Tribunal') under the Migration Act 1958 (Cth) ('the Act'). The Tribunal affirmed a decision of the Minister's delegate to cancel the subclass 560 (student) visa held by the applicant, a national of the Peoples' Republic of China. 2 Section 116 of the Act, relevantly, confers the following powers to cancel a visa: 'Section 116. Power to cancel (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: ... (b) its holder has not complied with a condition of the visa ... (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.' 3 Regulation 2.43 provides: 'Regulation 2.43 Grounds for cancellation of visa (Act, s 116) ... (2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: ... (b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with: (i) ... (ii) condition 8202.' 4 The applicant's visa attached condition 8202, contained in Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). Item 4 relevantly states: '4. ... (3) The condition is that: ... (c) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester – for each term and semester of the course; and (d) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than semester – for the course; or (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.'