Giri v MIAC

Case [2011] FCA 928

FEDERAL COURT OF AUSTRALIA

Giri v Minister for Immigration and Citizenship [2011] FCA 928

Citation: Giri v Minister for Immigration and Citizenship [2011] FCA 928
Appeal from: GIRI v Minister for Immigration & Anor [2011] FMCA 282
Parties: GIRI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number: NSD 675 of 2011
Judge: GREENWOOD J
Date of judgment: 16 August 2011
Catchwords: MIGRATION – consideration of whether a visa applicant has any entitlement to appear before the Migration Review Tribunal in circumstances where an event has occurred falling within s 359C of the Migration Act 1958 (Cth) – consideration of ss 359A, 359C, 360 and 363A of that Act
Legislation: Migration Act 1958 (Cth) ss 359A, 359C, 360 and 363A
Cases cited: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 – cited and quote
M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247, (2006) 155 FCR 333 –cited
Kumar v Minister for Immigration & Citizenship [2010] FMCA 614 – quoted and cited
Date of hearing: 2 August 2011
Date of last submissions: 2 August 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 49
Counsel for the Appellant: The Appellant did not appear
Counsel for the Respondents: Ms R Francois
Solicitor for the Respondents: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 675 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

GIRI
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

16 AUGUST 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Appeal is dismissed.

2.The Appellant pay the costs of the First Respondent of and incidental to the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 675 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

GIRI
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

GREENWOOD J

DATE:

16 AUGUST 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an appeal from a judgment of the Federal Magistrates Court of Australia (Cameron FM) delivered on 28 April 2011 dismissing the appellant’s application for review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 4 November 2010 and published on 5 November 2010.  The Tribunal affirmed a decision of the Delegate of the first respondent to cancel the appellant’s Vocational Education and Training Sector Visa described as a Student (Temporary) (Class TU), subclass 572 (“the visa”) issued under the provisions of the Migration Act 1958 (Cth).

  2. When the appeal was called for hearing at 2.15pm on Tuesday, 2 August 2011, there was no appearance for the appellant.  Counsel for the first respondent advised the Court that her instructing solicitor had spoken with the appellant by telephone when it became…

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Details
AGLC
Giri v MIAC [2011] FCA 928
Case
[2011] FCA 928
Decision Date

CaseChat Overview and Summary

Giri has appealed against the decision of the Federal Circuit Court, which dismissed his application for judicial review of a decision by the Migration Review Tribunal. The Tribunal had determined that the Appellant had no entitlement to appear before it due to an event occurring that fell within section 359C of the Migration Act 1958 (Cth). The Appellant's visa was cancelled on the ground of serious crime and he applied to the Tribunal for review of that decision. The Tribunal found that he had no entitlement to appear before it by reason of section 359C(1)(a) of the Act, as the event that triggered the section had occurred.

The legal issues in this case included whether the Tribunal was correct in finding that the Appellant had no entitlement to appear before it and whether the Tribunal had the power to make such a finding. The Appellant argued that he had a right to appear before the Tribunal and that the Tribunal did not have the power to determine his entitlement to appear. The Respondent argued that the Tribunal had correctly found that the Appellant had no entitlement to appear and that it had the power to make such a finding.

The court found that the Tribunal was correct in its determination that the Appellant had no entitlement to appear before it due to the event that had occurred under section 359C(1)(a) of the Act. The court found that the Tribunal had the power to make such a finding and that the Appellant's arguments to the contrary were without merit. The court further found that the Appellant had not demonstrated that the Tribunal had made an error of law in its determination.

The appeal was dismissed, and the Appellant was ordered to pay the costs of the First Respondent of and incidental to the appeal. The court noted that the costs were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The Appeal is dismissed.

2. The Appellant pay the costs of the First Respondent of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

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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