Fwati v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1478

Fwati v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1478

There was no jurisdictional error in the Tribunal's process, reasoning or decision. The Tribunal did consider that the applicant had not deliberately flouted condition 8202, did consider the information about alleged counselling courses, and referred to the migration agent's unhelpful responses only to explain why those responses did not assist in determining substantial compliance. Given the evidence that the applicant was not enrolled in a registered course for about five months and the absence of evidence about the duration or registration of the counselling courses, it was fairly open to the Tribunal to conclude that the applicant had not substantially complied with condition 8202;...

Jurisdiction
Australia
Judgment Date
12 December 2003
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) for Prohibition, Certiorari, Mandamus or an Injunction Concerning a Migration Review Tribunal Student Visa Decision / Federal Court Final Judgment After the Migration Review Tribunal Affirmed the Delegate's Refusal to Grant a Student Visa
Outcome
The application was dismissed with costs payable to the first respondent; no costs order was made for the second and third respondents.
Legal Topics
['student Visa' 'substantial Compliance With Visa Conditions' 'condition 8202' 'registered Course Enrolment' 'jurisdictional Error' 'judicial Review of Migration Review Tribunal Decision']
['migration Law' 'administrative Law'] ['student Visa' 'substantial Compliance With Visa Conditions' 'condition 8202' 'registered Course Enrolment' 'jurisdictional Error' 'judicial Review of Migration Review Tribunal Decision']

Case Brief

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Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) for Prohibition, Certiorari, Mandamus or an Injunction Concerning a Migration Review Tribunal Student Visa Decision / Federal Court Final Judgment After the Migration Review Tribunal Affirmed the Delegate's Refusal to Grant a Student Visa

Legal Issues

  1. 1 ['Whether the Migration Review Tribunal made jurisdictional error in finding that the applicant had not substantially complied with condition 8202 of his previous student visa.' "Whether the applicant's non-enrolment in a registered course between August 2001 and January 2002 meant he failed to satisfy clause 573.212 at the time of application." 'Whether the Tribunal failed to take into account that the applicant had not deliberately flouted the visa condition.' 'Whether the Tribunal failed to take into account alleged counselling courses undertaken between 21 August 2001 and January 2002.' "Whether the Tribunal took into account an irrelevant consideration by criticising the migration agent's responses."]

Ratio Decidendi

There was no jurisdictional error in the Tribunal's process, reasoning or decision. The Tribunal did consider that the applicant had not deliberately flouted condition 8202, did consider the information about alleged counselling courses, and referred to the migration agent's unhelpful responses only to explain why those responses did not assist in determining substantial compliance. Given the evidence that the applicant was not enrolled in a registered course for about five months and the absence of evidence about the duration or registration of the counselling courses, it was fairly open to the Tribunal to conclude that the applicant had not substantially complied with condition 8202;...

Court Disposition

The application was dismissed with costs payable to the first respondent; no costs order was made for the second and third respondents.

Orders

  • ['The application is dismissed.' "The applicant to pay the first respondent's costs." 'No order made in relation to the costs of the second and third respondents.']