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 citedDate 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
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION 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
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE:
16 AUGUST 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
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).
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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- AGLC
- Giri v MIAC [2011] FCA 928
- Case
- [2011] FCA 928
- Decision Date
CaseChat Overview and Summary
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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