Peng v Minister for Immigration and Multicultural Affairs

[2000] FCA 1672

FEDERAL COURT OF AUSTRALIA

Peng v Minister for Immigration & Multicultural Affairs [2000] FCA 1672

MIGRATION – review of decision of Migration Review Tribunal affirming decision not to grant a Student (Temporary) Class TU Subclass 560 Visa – where applicant arrived in Australia two days before date of expiration of original visa – where applicant applied for new student visa, but was refused on grounds that condition 8202 of original student visa had not been substantially complied with – where registered course start and finish dates uncertain – whether Minister is obliged to take into account the applicant’s explanation for failure to comply when determining whether there has been substantial compliance, – whether remitting application to the Migration Review Tribunal would be futile –whether substantial compliance with each condition, rather than substantial compliance with the conditions as a whole, is required – whether arrangements seeking to comply with an equivalent condition of a future visa, can amount to substantial performance of the condition of the original visa since expired – determination on whether there has been a failure to comply with condition 8202 at a certain time, can only be made at the completion of the course

Migration Act 1958 (Cth) s 116(1)(b)
Migration Regulations 1994 (Cth) reg 1.03, 2.43(2)(b), cl 560.213, cl 560.222, condition 8202 of Sch 8

Kim v Witton (1995) 59 FCR 258 applied
Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381 applied
Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 considered

KANG JIE PENG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 830 OF 2000

HELY J
21 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 830 OF 2000

BETWEEN:	KANG JIE PENG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	21 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of Migration Review Tribunal given on 30 June 2000 be set aside.

2.The matter to which the decision relates be remitted to a differently constituted Tribunal for reconsideration according to law.

3.The respondent pay the applicant’s costs of this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 830 OF 2000

BETWEEN:	KANG JIE PENG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	21 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a Chinese national.  On 16 September 1998 he lodged an application for a Student (Temporary) Visa with the Australian Embassy in Beijing.  The application disclosed that the applicant wished to undergo a course in intensive English at the Holmes Intensive English College prior to undertaking a high school course at the Hills Grammar School and thereafter a course at the University of Sydney.  The application included a provisional letter of acceptance from the Holmes Intensive English College which confirmed the applicant’s provisional…