Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358

Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358

Section 360A(4) of the Migration Act 1958 (Cth) did not require the prescribed period of notice to be given again for the rescheduled Tribunal hearing, because the prescribed period had been given for the original hearing and a rescheduled hearing was not a fresh invitation to appear. The applicable requirement was that notice of the rescheduled hearing not be unreasonably short. On the facts, notice given on 23 June 2009 for the hearing on 2 July 2009 was reasonable, including because no sufficient basis was shown that the period prevented the Appellant from obtaining or presenting relevant material. The abandoned ground was without substance, the first ground failed, and the appeal was...

Jurisdiction
Australia
Judgment Date
30 November 2011
Procedural Posture
Appeal From the Federal Magistrates Court of Australia Concerning Judicial Review of a Migration Review Tribunal Decision / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['notice of Hearing' 'reasonable Notice' 'migration Review Tribunal Procedure' 'rescheduled Hearing' 'student Visa Refusal' 'judicial Review']
['administrative Law' 'migration Law'] ['notice of Hearing' 'reasonable Notice' 'migration Review Tribunal Procedure' 'rescheduled Hearing' 'student Visa Refusal' 'judicial Review']

Case Brief

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Procedural Posture

Appeal From the Federal Magistrates Court of Australia Concerning Judicial Review of a Migration Review Tribunal Decision / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the Federal Magistrate erred in finding that the Migration Review Tribunal provided reasonable notice of the rescheduled hearing.' 'Whether s 360A of the Migration Act 1958 (Cth) required the prescribed period of notice to be given again for a rescheduled Tribunal hearing.' 'Whether leave should be granted to rely on a ground abandoned before the Federal Magistrate.']

Ratio Decidendi

Section 360A(4) of the Migration Act 1958 (Cth) did not require the prescribed period of notice to be given again for the rescheduled Tribunal hearing, because the prescribed period had been given for the original hearing and a rescheduled hearing was not a fresh invitation to appear. The applicable requirement was that notice of the rescheduled hearing not be unreasonably short. On the facts, notice given on 23 June 2009 for the hearing on 2 July 2009 was reasonable, including because no sufficient basis was shown that the period prevented the Appellant from obtaining or presenting relevant material. The abandoned ground was without substance, the first ground failed, and the appeal was...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' 'The Appellant is to pay the costs of the First Respondent, awarded in a lump sum of $4,630.00 pursuant to r 40.02(b) of the Federal Court Rules 2011.']