RAYAPALLI v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAYAPALLI v MINISTER FOR IMMIGRATION [2006] FMCA 24

MIGRATION − Student visa − whether Tribunal should have obtained certificate from education provider − whether Tribunal breached procedural fairness in not advising applicant to obtain certificate from education provider.

Migration Act 1958

Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55]
Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772 at [14]-[16]
Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 26
Gunawardena v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 31 at [25]-[29]
Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] using a 495 at [16]

Applicant: RADHIKA RAYAPALLI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG282 of 2005

Judgment of: Phipps FM

Hearing date: 11 October 2005

Date of Last Submission: 11 October 2005

Delivered at: Melbourne

Delivered on: 24 January 2006

REPRESENTATION

Counsel for the Applicant: Mr Condliffe

Solicitors for the Applicant: Ryan Carlisle Thomas

Counsel for the Respondent: Mr Knowles

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG282 of 2005

RADHIKA RAYAPALLI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant entered Australia on 19 February 2003 as the holder of a subclass 574 student visa valid until 15 March 2004.  She was granted another student visa also valid until 15 March 2004.  On 16 March 2004, the applicant applied for another student visa which was refused.  The refusal was confirmed by the Migration Review Tribunal.  

   
   

   The Tribunal considered that she did not meet a necessary criterion, which was that she had complied substantially with the conditions to which the last held visa was subject.

2. The Tribunal considered that the applicant had not complied substantially with the requirement of her previous visa, that she achieve an academic result that was certified by the education provider, Swinburne University of Technology, to be at least satisfactory for each semester of the course.

3. There are two issues:

   a)whether there was a breach of procedural fairness because the Tribunal;

   i)did not notify the applicant that she should obtain a certificate of satisfactory academic progress from Swinburne University of Technology; or

   ii)did not itself request Swinburne to provide a certificate.

   b)whether the Tribunal asked the wrong question, in that it considered the question of substantial compliance itself, whereas, the applicant argues, it should only have considered whether there was a certificate from Swinburne.

History

1. The applicant entered Australia on 19 February 2003 as the holder of a student visa valid until 15 March 2004.  On 24 March 2004, she was granted a further student visa also valid until 15 March 2004.  The visa was subject to condition 8202.

2. In 2003 she enrolled in a…