Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819

FEDERAL COURT OF AUSTRALIA

Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819 MIGRATION – cancellation of student visa under s 116 of the Migration Act 1958 (Cth) – Condition 8202 – s 505 of the Act provides for regulations for applicants for, not holders of, a visa – power to make regulations under s 504 and s 41(1) of the Act – whether Condition 8202 ultra vires – Condition 8202 does not delegate to educational course providers the power to specify a visa condition – Condition 8202 not invalid for impermissible delegation – representations made in notice issued pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth) – alleged procedural unfairness – defects in a notice under s 20 of the Students Act are not material to the Tribunal decision under review – application dismissed

Migration Act 1958 (Cth) ss 41(1), 137J, 137K, 137L, 116, 504, 505 Education Services for Overseas Students Act 2000 (Cth) s 20

Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 followed Conroy v Shire of Springvale and Noble Park (1959) VR 737 cited Ellis v Dubowski (1921) 3 KB 621 cited Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558 at [30] cited Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 cited Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 cited Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 125 FCR 115 applied Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 90 considered Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland (1979) 142 CLR 460 cited Turner v Owen (1990) 26 FCR 366 cited Twinn v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 490 cited Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 cited Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 cited Pearce D and Argument S, Delegated Legislation in Australia (3rd ed, Butterworths, 2005) WEN BI DAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL NSD 2216 OF 2005