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

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

The appellant failed to respond by 28 September 2010 to the Tribunal's s 359A invitation dated 21 September 2010. Applying the construction definitively established by the Full Court in Hasran and the reasoning in M, that failure attracted ss 359C(2), 360(3) and 363A of the Migration Act 1958 (Cth), so that the appellant was not entitled to appear before the Tribunal and the Tribunal had no power to permit him to appear. The Federal Magistrates Court therefore correctly rejected the asserted jurisdictional error. The appellant also failed to demonstrate that the Federal Magistrate failed to have regard to the information sought by the 21 September 2010 letter or that any jurisdictional...

Jurisdiction
Australia
Judgment Date
16 August 2011
Procedural Posture
Migration Appeal / Appeal From the Federal Magistrates Court of Australia Dismissing an Application for Review of a Migration Review Tribunal Decision Affirming Cancellation of a Student Visa
Outcome
Appeal dismissed
Legal Topics
['student Visa Cancellation' 'condition 8202' 'migration Review Tribunal Procedure' 'entitlement to Appear Before the Tribunal' 'jurisdictional Error' 'construction of Ss 359 a, 359 C, 360 and 363 a of the Migration Act 1958 (cth)']
['migration Law' 'administrative Law'] ['student Visa Cancellation' 'condition 8202' 'migration Review Tribunal Procedure' 'entitlement to Appear Before the Tribunal' 'jurisdictional Error' 'construction of Ss 359 A, 359 C, 360 and 363 a of the Migration Act 1958 (cth)']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Migration Appeal / Appeal From the Federal Magistrates Court of Australia Dismissing an Application for Review of a Migration Review Tribunal Decision Affirming Cancellation of a Student Visa

Legal Issues

  1. 1 ['Whether the appellant had any entitlement to appear before the Migration Review Tribunal after failing to respond by the nominated date to an invitation under s 359A of the Migration Act 1958 (Cth).' 'Whether the Tribunal misconstrued its obligation to hold a hearing after it had already invited the appellant to appear before a later s 359C(2) event occurred.' 'Whether the Federal Magistrates Court erred by applying Hasran v Minister for Immigration and Citizenship and M v Minister for Immigration and Multicultural Affairs rather than the approach in Kumar v Minister for Immigration & Citizenship.' "Whether the Federal Magistrate failed to have regard to the nature of the information sought in the Tribunal's letter of 21 September 2010."]

Ratio Decidendi

The appellant failed to respond by 28 September 2010 to the Tribunal's s 359A invitation dated 21 September 2010. Applying the construction definitively established by the Full Court in Hasran and the reasoning in M, that failure attracted ss 359C(2), 360(3) and 363A of the Migration Act 1958 (Cth), so that the appellant was not entitled to appear before the Tribunal and the Tribunal had no power to permit him to appear. The Federal Magistrates Court therefore correctly rejected the asserted jurisdictional error. The appellant also failed to demonstrate that the Federal Magistrate failed to have regard to the information sought by the 21 September 2010 letter or that any jurisdictional...

Court Disposition

Appeal dismissed

Orders

  • ['The Appeal is dismissed.' 'The Appellant pay the costs of the First Respondent of and incidental to the appeal.']