Ma v Minister for Immigration and Citizenship [2007] FCAFC 69

Ma v Minister for Immigration and Citizenship [2007] FCAFC 69

The amended reg 2.43(2)(b) did not apply because the appellant's visa, cancelled on 18 May 2005, would in any event have expired on 31 August 2005 and was not in force on or after 7 October 2005. The Tribunal applied the correct Condition 8202 inquiry, the appellant did not obtain certification from the education provider that his Session 2, 2004 academic result was at least satisfactory, and once breach of Condition 8202 was found the Tribunal had to affirm the cancellation. The Tribunal did not fail to comply with s 359A, and the Federal Magistrate was right to dismiss the judicial review application.

Jurisdiction
Australia
Judgment Date
11 May 2007
Procedural Posture
Immigration Appeal From the Federal Magistrates Court of Australia / Appeal Against Dismissal of an Application for Judicial Review of a Migration Review Tribunal Decision Affirming Cancellation of a Student (temporary) (class Tu) Visa
Outcome
Appeal dismissed.
Legal Topics
['student Visa Cancellation' 'condition 8202' 'migration Review Tribunal Review' 'jurisdictional Error' 'section 359 a Particulars' 'transitional Application of Amended Regulations']
['immigration Law' 'administrative Law'] ['student Visa Cancellation' 'condition 8202' 'migration Review Tribunal Review' 'jurisdictional Error' 'section 359 a Particulars' 'transitional Application of Amended Regulations']

Case Brief

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Procedural Posture

Immigration Appeal From the Federal Magistrates Court of Australia / Appeal Against Dismissal of an Application for Judicial Review of a Migration Review Tribunal Decision Affirming Cancellation of a Student (temporary) (class Tu) Visa

Legal Issues

  1. 1 ["Whether the delegate's decision to cancel the appellant's Student (Temporary) (Class TU) visa for breach of Condition 8202 was affected by jurisdictional error or was a nullity." "Whether amended reg 2.43(2)(b) of the Migration Regulations 1994 applied to the Tribunal's review because the visa was in force on or after 7 October 2005." "Whether the Tribunal was required to consider whether non-compliance with Condition 8202 was due to exceptional circumstances beyond the appellant's control." 'Whether the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth).' 'Whether the Tribunal applied the correct test under Condition 8202.']

Ratio Decidendi

The amended reg 2.43(2)(b) did not apply because the appellant's visa, cancelled on 18 May 2005, would in any event have expired on 31 August 2005 and was not in force on or after 7 October 2005. The Tribunal applied the correct Condition 8202 inquiry, the appellant did not obtain certification from the education provider that his Session 2, 2004 academic result was at least satisfactory, and once breach of Condition 8202 was found the Tribunal had to affirm the cancellation. The Tribunal did not fail to comply with s 359A, and the Federal Magistrate was right to dismiss the judicial review application.

Court Disposition

Appeal dismissed.

Orders

  • ["The first respondent's title be changed to Minister for Immigration and Citizenship." 'The appeal be dismissed.' "The appellant pay the first respondent's costs."]