Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046

Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046

Although there was arguable error in the primary judge's observation that there may have been no need for the Tribunal to utilise s 359AA once the Tribunal had in fact elected to proceed under that section, the appeal grounds had no merit. The Tribunal had a rational and intelligible basis to proceed with the hearing and was not obliged to adjourn where the appellant had not held a Confirmation of Enrolment since March 2018, had been on notice that enrolment evidence was required, and had no evidence that a Confirmation of Enrolment was pending or likely within a reasonable period. The Tribunal told the appellant the facts it considered fatal, explained their relevance and consequences,...

Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Migration Appeal and Application for Leave to Appeal From the Federal Circuit Court of Australia / Application for Leave to Appeal Granted; Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['student (temporary) (class Tu) Visa' 'subclass 500 – Student Visa' 'confirmation of Enrolment' 'procedural Fairness' 's 359 AA of the Migration Act 1958 (cth)' 'jurisdictional Error' 'adjournment' 'leave to Appeal']
['migration Law' 'administrative Law' 'judicial Review' 'appellate Procedure'] ['student (temporary) (class Tu) Visa' 'subclass 500 – Student Visa' 'confirmation of Enrolment' 'procedural Fairness' 's 359 AA of the Migration Act 1958 (cth)' 'jurisdictional Error' 'adjournment' 'leave to Appeal']

Case Brief

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Procedural Posture

Migration Appeal and Application for Leave to Appeal From the Federal Circuit Court of Australia / Application for Leave to Appeal Granted; Appeal Dismissed

Legal Issues

  1. 1 ["Whether leave was required and should be granted to appeal from the Federal Circuit Court's interlocutory judgment dismissing the show cause application." 'Whether the Tribunal misconstrued its statutory power or function by treating cl 500.211 as fatal and refusing to adjourn the review hearing.' 'Whether the Tribunal acted irrationally, legally unreasonably or denied procedural fairness in dealing with the absence of a current Confirmation of Enrolment.' 'Whether the Tribunal complied with s 359AA of the Migration Act 1958 (Cth) after orally putting adverse information to the appellant.']

Ratio Decidendi

Although there was arguable error in the primary judge's observation that there may have been no need for the Tribunal to utilise s 359AA once the Tribunal had in fact elected to proceed under that section, the appeal grounds had no merit. The Tribunal had a rational and intelligible basis to proceed with the hearing and was not obliged to adjourn where the appellant had not held a Confirmation of Enrolment since March 2018, had been on notice that enrolment evidence was required, and had no evidence that a Confirmation of Enrolment was pending or likely within a reasonable period. The Tribunal told the appellant the facts it considered fatal, explained their relevance and consequences,...

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['The application for leave to appeal made by the appellant on the hearing of the appeal on 19 August 2021 is granted.' 'The appeal is dismissed.' 'The appellant pay the costs of the first respondent of and incidental to the appeal.']