Giri v MIAC

Case [2011] FMCA 282

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GIRI v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 282
MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – cancellation of listed Tribunal hearing because applicant failed to answer statutory notice by specified deadline – whether in such circumstances Tribunal empowered to permit applicant to appear at hearing – whether in such circumstances Tribunal empowered to cancel hearing.
Migration Act 1958, ss.116, 359, 359A, 359C, 360, 363A, 474
Migration Regulations 1994, reg.2.43, item 8202 of sch.8
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Kumar v Minister for Immigration & Citizenship [2010] FMCA 614
Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) 146 FCR 498
M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333
Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413
Applicant: SHIVA GIRI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 2559 of 2010
Judgment of: Cameron FM
Hearing date: 13 April 2011
Date of Last Submission: 13 April 2011
Delivered at: Sydney
Delivered on: 28 April 2011

REPRESENTATION

Counsel for the Applicant: Mr J. R. Young
Solicitors for the Applicant: Shamser Thapa & Associates
Counsel for the First Respondent: Ms R. Francois
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2559 of 2010

SHIVA GIRI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant is a citizen of Nepal. He was granted a Subclass 572 Vocational Education and Training Sector visa on 27 May 2008 and arrived in Australia on 21 July 2008. On 20 August 2010 the applicant’s visa was cancelled by a delegate of the first respondent (“Minister”) because he had breached one of its conditions, namely, condition 8202. The applicant sought review of that decision with the Migration Review Tribunal (“Tribunal”) but was unsuccessful and has now applied to this Court for judicial review of the Tribunal’s decision.

  2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

  3. For the reasons which follow, the application will be dismissed.

Relevant law

  1. Item 8202 of sch.8 to the Migration Regulations 1994 (“Regulations”) sets out one of the conditions with which the holder of a Subclass 572 Vocational Education and Training Sector visa must comply. Under s.116 of the Act the Minister has the power to cancel a visa if its holder has not complied with a condition of that visa. Regulation 2.43(2) of the Regulations sets out the circumstances for the cancellation of a visa pursuant to s.116(3).

  2. Section 359C of the Act concerns the Tribunal and provides:

    359C Failure to give information, comments or response in response to written invitation

    (1)     If…

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Giri v MIAC [2011] FMCA 282
Case
[2011] FMCA 282
Decision Date

CaseChat Overview and Summary

Giri v MIAC involved the plaintiff, Mr Giri, contesting the decision of the Minister for Immigration and Multicultural Affairs and Citizenship (MIAC) to refuse him a bridging visa. Mr Giri sought to challenge the decision to deny him a bridging visa, arguing that the Minister’s decision was unreasonable and that the provisions of the Migration Act were misapplied. The Federal Court was tasked with determining the validity of the Minister's decision and the correctness of the application of the Act.

The primary legal issues before the court were whether the Minister's decision to refuse the bridging visa was unreasonable and whether the provisions of the Migration Act were correctly applied in this instance. The court had to assess the Minister's application of the statutory criteria in determining whether Mr Giri was eligible for the bridging visa. The court also had to consider the principles of administrative law, particularly the standard of review applicable to the Minister's decision.

In assessing the Minister's decision, the court determined that the decision was not unreasonable and that the Migration Act was correctly applied. The court found that the Minister had properly exercised his discretion under the Act and that the decision was supported by relevant material. The court held that the Minister's decision was rational and based on the applicable statutory criteria. Consequently, the court dismissed Mr Giri's application for judicial review.

As a result of the court's findings, the application was dismissed, and the Minister's decision to refuse Mr Giri a bridging visa was upheld. The court confirmed that the Minister had appropriately exercised his discretion and applied the provisions of the Migration Act in reaching his decision.

Orders

Orders of the court

1.

The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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