FEDERAL COURT OF AUSTRALIA
Fang v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1387MIGRATION – appeal - student visa – cancellation – whether condition 8202 can apply if holder not currently enrolled in a registered course – whether error of law in failing to consider whether appellant had withdrawn from enrolment in one registered course and transferred to another – whether error of law arising from failure to particularise notice of cancellation – whether error of law arising from failure to give appellant certain information required by statute
Migration Act 1958 (Cth) ss 116, 119, 121, 349, 359A
Migration Regulations reg 2.43, sch 8 cl 8202Abebe v Commonwealth (1999) 197 CLR 510 applied
Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 280 affirmed
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited
Teoh v Minister of State for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 applied
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 applied
Twist v Randwick Municipal Council (1976) 136 CLR 106 referred to
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 appliedBIN FANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W112 of 2004RD NICHOLSON J
29 OCTOBER 2004
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W112 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
BIN FANG
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
RD NICHOLSON J
DATE OF ORDER:
29 OCTOBER 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W112 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
BIN FANG
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
29 OCTOBER 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an appeal from a decision of a Federal Magistrate (McInnis FM) given on 6 May 2004 (Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 280). That decision dismissed an application seeking judicial review of a decision of the Migration Review Tribunal (‘the MRT’) given on 11 October 2002. The MRT had affirmed a decision that a Student (Temporary) (Class TU) visa held by the appellant be cancelled.
On the hearing of the appeal the appellant sought leave to file a minute of amended notice of appeal. It was agreed that the issue of the grant of leave be held over pending argument. That having occurred, I am satisfied that the issues raised by the new grounds are within the scope of the issues raised by…
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- AGLC
- Fang v MIMIA [2004] FCA 1387
- Case
- [2004] FCA 1387
- Decision Date
CaseChat Overview and Summary
The court found that the MRT did not misinterpret the number of subjects the appellant failed but correctly assessed his academic results. It was noted that the appellant had provided this information to the MRT, and therefore, there was no breach of procedural fairness. The court further determined that the MRT's reliance on the academic performance and attendance records was appropriate, given that these were part of the evidence provided by the appellant. The court concluded that the MRT's decision did not contain any errors of law and that the procedural fairness was adequately maintained.
In summary, the Federal Court dismissed the appeal and affirmed the decision of the MRT. The appellant was ordered to pay the respondent's costs of the appeal. The court emphasised that its decision was based on the legal interpretation of the visa conditions and the procedural fairness of the decision-making process, rather than an assessment of the appellant's academic abilities.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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