Yenugudhati v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1122

FEDERAL COURT OF AUSTRALIA

Yenugudhati v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1122

MIGRATION – leave to appeal from interlocutory judgment refused

Federal Court of Australia Act 1976 (Cth) s 24(1A)

SAAPv Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162, referred to

Schiffer v Pattison (2005) 215 ALR 505, [2005] FCA 494, referred to

GOPI KRISHNA YENUGUDHATI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL

VID 673 OF 2005

MARSHALL J
15 AUGUST 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 673 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

GOPI KRISHNA YENUGUDHATI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

15 AUGUST 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The directions hearing scheduled for 22 August 2005 is vacated.

2.The Migration Review Tribunal is added as a respondent.

3.The appeal is dismissed as incompetent.

4.The appellant pay the first respondent’s costs of her motion dated 9 August 2005 and of the “appeal”.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 673 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

GOPI KRISHNA YENUGUDHATI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MARSHALL J
DATE:	15 AUGUST 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a notice of motion filed by the first respondent seeking an order dismissing an appeal from a judgment of a Federal Magistrate given on 16 June 2005.

2. On 16 June 2005 Federal Magistrate Phipps dismissed the appellant’s application to review a decision of the Migration Review Tribunal (“the MRT”) made on 30 August 2004. The MRT had affirmed a decision of a delegate of the first respondent cancelling the appellant’s student visa. The MRT will be added as a respondent to the appeal; see SAAPv Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162.

3. The judgment the subject of the appeal was given in the absence of the appellant, who failed to attend the hearing. It was given orally, simply dismissing the proceeding for non-attendance of the moving party.

4. A judgment given in a summary manner, such as the one below, when given in favour of a respondent is an interlocutory one; see Schiffer v Pattison (2005) 215 ALR 505, [2005] FCA 494 at [56] to [60], per Weinberg J. Consequently the appellant requires leave to appeal from the judgment below; see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The appellant has not sought leave to appeal but has assumed a right to appeal the judgment below.

5. In the absence of any application for leave to appeal, it must be dismissed. However, even if leave to appeal were to be belatedly applied for, it would be futile to grant such leave because the appeal would have no prospect of success. The decision of the MRT observed correctly that the appellant’s student visa was cancelled on account of his breaching a condition of the visa. The MRT found that the appellant breached condition 8202 of his sub-class 574 visa. That condition required him to achieve an academic result certified by his education provider as, at least, satisfactory for each term or semester. His education provider did not so certify. In fact the appellant’s results were so poor that he was excluded from his course.

6. It is appropriate to order as follows:

   1.          The directions hearing scheduled for 22 August 2005 is vacated.

   2.          The Migration Review Tribunal is added as a respondent.

   3.          The appeal is dismissed as incompetent.

   4.The appellant pay the first respondent’s costs of her motion dated 9 August 2005 and of the “appeal”.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:            15 August 2005

The appellant appeared in person.
Counsel for the Respondents:	Ms P Mitchell
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	15 August 2005
Date of Judgment:	15 August 2005