Feng v MIAC

The case of Feng v MIAC involved the applicant, Mr Feng, challenging the decision of the Migration Review Tribunal (MRT) to cancel his student visa. The legal issues before the court centred around whether the Tribunal erred in its interpretation of the relevant policy guidelines, specifically section 113 (later renumbered as 115) of the policy relating to “Condition 8202 – Enrolment and Course Requirements”. The key question was whether the Tribunal misapplied the policy by failing to allow Mr Feng additional time to re-enrol in a course after his initial enrolment had ceased. The court also had to consider whether there was any inconsistency between the statutory regime and the policy, and if the statutory regime would prevail.

The Federal Court found that the Tribunal did not err in its application of the policy. The court held that the policy relied upon by Mr Feng applied to students who had completed their course of study and had lodged an application for skilled migration, which was not the situation in this case. Mr Feng had not made such an application, and there was no evidence of a valid application at the time in question. The court further held that even if there were an inconsistency between the statutory regime and the policy, the statutory regime would prevail. Additionally, the court found that there was no obligation on the Tribunal to inquire about possible courses of study in which Mr Feng might have enrolled, as the evidence did not establish that a student visa holder had to have possession of their passport to enrol in a registered course.

The application for judicial review was dismissed by the court. The Federal Court held that the Tribunal did not make a jurisdictional error in cancelling Mr Feng's visa, and thus, the application was dismissed.