FEDERAL COURT OF AUSTRALIA
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 216
MIGRATION – cancellation of student visa under s 116 Migration Act 1958 (Cth) – meaning of ‘to be at least satisfactory’ in Condition 8202 in Sch 8 to the Migration Regulations 1994 (Cth) considered – whether s 116(1)(b) and (3) of the Migration Act 1958 (Cth), together with reg 2.43(2)(b) of the Migration Regulations 1994 (Cth), require strict or substantial compliance with Condition 8202 in Sch 8 to the Regulations
Migration Act 1958 (Cth) ss 116, 137J, 137K, 137L
Migration Regulations 1994 (Cth) reg 2.43, Sch 2 cl 560.611, Sch 8 Condition 8202
Education Services for Overseas Students Act 2000 (Cth) ss 19, 20
Migration Legislation Amendment (Overseas Students) Act 2000 s 3, Sch 4, Sch 1Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 referred to
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 approved
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Shrestha v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 referred to
Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1285 referred to
Patsanza v Minister for Immigration & Multicultural Affairs [2001] FCA 734 referred to
Ariyagama v Minister for Immigration & Multicultural Affairs [2001] FCA 1407 referred toZENG XIA TIAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
S 466 OF 2003
MANSFIELD J
12 MARCH 2004
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 466 OF 2003
BETWEEN:
ZENG XIA TIAN
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
12 MARCH 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 466 OF 2003
BETWEEN:
ZENG XIA TIAN
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
12 MARCH 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
This application was instituted on 28 April 2003. The applicant seeks prerogative orders in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 2 April 2003, in essence to quash a decision of the Tribunal affirming the cancellation of her visa. The applicant accepts that she is entitled to the orders sought only if she establishes jurisdictional error of the part of the Tribunal in the making of its decision: Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.
The applicant is a citizen of China. She entered Australia on 17 May 2001 pursuant to a Student (Temporary) (Class TU) Visa Subclass 560 issued on 11 April 2001. That visa was valid to 15 March 2002. The visa was extended to 15 March 2004. However,…
Continue reading Tian v MIMIA
Sign in free to access the full text
- AGLC
- Tian v MIMIA [2004] FCA 216
- Case
- [2004] FCA 216
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to address were primarily centered on the interpretation and application of sections 116(1)(b) and 116(3) of the Act, as well as Regulation 2.43(2)(b) of the Migration Regulations. It was essential to determine if the Tribunal was correct in affirming the delegate's decision to cancel the visa based on the evidence provided. Specifically, the court had to examine whether the Tribunal correctly assessed whether Tian had achieved an academic result certified by the education provider as at least satisfactory for each term or semester of her course. The court also needed to consider whether the Tribunal correctly interpreted the academic performance requirements and whether the prescribed circumstances for visa cancellation under Regulation 2.43(2)(b) were correctly applied.
The court found that the Tribunal had properly reviewed the evidence and correctly concluded that Tian had not satisfied the academic conditions for her student visa. The Tribunal had rightly focused on terms one, two, and three of the school year as the relevant period for assessing the academic performance required by Condition 8202(3)(b). The court upheld the Tribunal's finding that Tian had not achieved a satisfactory academic result certified by the school for each of these terms. This finding aligned with the prescribed circumstances for visa cancellation under the relevant regulation. Given that the Tribunal was bound by the statutory requirements and did not have discretion to make a different decision, the court affirmed the Tribunal's conclusion that the visa cancellation was justified under the Act and the Regulations.
ORDERS:
1. The application is dismissed.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
Full text does not contain this section.