Vikas Sharma v Minister for Immigration and Border Protection

[2014] HCASL 202

VIKAS SHARMA

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCASL 202
M56/2014

1. On 22 April 2013, the Migration Review Tribunal affirmed the decision of a delegate of the first respondent to refuse the applicant a Student (Temporary) (Class TU) visa. The Tribunal found that the applicant had not satisfied cl 572.235 of Sched 2 to the Migration Regulations 1994 (Cth), which required that the applicant substantially comply with the conditions applying to the last of any substantive visa held. The last student visa held by the applicant was subject to a condition that the applicant's education provider had not certified the applicant as not achieving satisfactory course attendance. The applicant had received, and acknowledged receipt of, a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) informing him that his education provider certified that his course attendance was unsatisfactory. The Tribunal took the view that the certification was wholly determinative of the issue of compliance with the relevant visa condition, and that it had no discretion to look behind the notice and investigate whether or not it should have been issued.

2. On 19 December 2013, the Federal Circuit Court of Australia (Judge Riley) dismissed the applicant's application for review of the decision of the Tribunal.  Judge Riley held that the Tribunal's determination that it could not go behind the certification was in accordance with authority, and it followed that there was no jurisdictional error in the decision of the Tribunal.

3. An appeal to the Federal Court of Australia (Jessup J) was dismissed on the basis that the applicant had failed to identify any error in the decision of Judge Riley. 

4. The applicant seeks special leave to appeal from the decision of Jessup J. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).

5. No question of public importance falls for determination in this application, and an appeal to this Court would enjoy no prospects of success.  The application is to be dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
10 December 2014 S.J. Gageler