Grewal v Minister for Immigration and Border Protection [2016] FCA 1229

Procedural Posture

Migration Appeal From Federal Circuit Court Judicial Review Decision / Appeal to the Federal Court of Australia From Dismissal of Application for Judicial Review

Legal Issues

1. 1 ["Whether the primary judge and the Tribunal misconstrued and misapplied cl 572.235 of Sch 2 to the Migration Regulations 1994 (Cth) by requiring substantial compliance with each condition of the appellant's prior visa rather than substantial compliance with the conditions taken as a whole." "Whether revocation of the automatic cancellation of the appellant's second student visa under s 137L of the Migration Act 1958 (Cth), on the basis of exceptional circumstances beyond her control, meant that she satisfied cl 572.235." "Whether the Tribunal could go behind the education provider's certification under s 19 of the Education Services for Overseas Students Act 2000 (Cth) that the appellant had not achieved satisfactory course progress."]

Ratio Decidendi

The appellant could not satisfy cl 572.235 because her education provider had certified under s 19 of the Education Services for Overseas Students Act 2000 (Cth) that she had not achieved satisfactory course progress, which meant she did not meet condition 8202(3). Clause 572.235 required substantial compliance with each condition of the prior substantive visa, and the Minister's revocation of the automatic cancellation of the second visa did not remove or negate the certification, deem compliance with condition 8202, or otherwise affect the separate question whether a further student visa should be granted. The Tribunal was not permitted to go behind the certification or evaluate the...

Court Disposition

Appeal dismissed

Orders

• ['The appeal be dismissed.' 'The appellant pay the costs of the first respondent, to be assessed if not agreed.']