Shrestha v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCAFC 103

FEDERAL COURT OF AUSTRALIA

Shrestha v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 103

RADHAB SHRESTHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 16 of 2003

WHITLAM, FINN and GOLDBERG JJ
21 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 16 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RADHAB SHRESTHA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WHITLAM, FINN and GOLDBERG JJ
DATE OF ORDER:	21 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 16 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RADHAB SHRESTHA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WHITLAM, FINN and GOLDBERG JJ
DATE:	21 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Hill J dismissing with costs an application under s 39B of the Judiciary Act 1903 (Cth) for relief in respect of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 17 July 2002. The Tribunal affirmed the decision of a delegate of the respondent (the Minister) to cancel a student visa granted to the appellant. That visa was granted on 9 July 1999 and was due to expire on 2 September 2000. The delegate cancelled the visa on 14 February 2000 because the appellant had not complied with condition 8202.

2. That condition required the holder of a student visa to attend at least 80% of classes and tutorials scheduled for his or her registered course.  The appellant was enrolled at an institution for a course that ran from 2 August 1999 to 28 July 2000.  The Tribunal found that the appellant breached condition 8202 in the period from 2 August 1999 to 10 December 1999.  Hill J held that, although the Tribunal did not make an express finding that the appellant’s enrolment was cancelled on 10 December 1999, the Tribunal’s conclusion was predicated upon the finding that that course had terminated by 10 December 1999.

3. The grounds of appeal essentially state that his Honour erred in that view because the Tribunal had made no ‘subsidiary’ finding as to the ‘determinative date of cancellation of enrolment.’  We agree with his Honour’s view.  The materials in the appeal papers leave not the slightest doubt both that it was open to the Tribunal to infer that the appellant’s enrolment was cancelled on 10 December 1999 and that in its reasons the Tribunal clearly acted upon that assumption.  The appellant had, in fact, enrolled in another course at another institution on 28 February 2000.

4. The appeal will be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Finn and Goldberg JJ.

Associate:

Dated:             22 May 2003

Counsel for the Applicant:	Mr J R Young
Solicitor for the Applicant:	Newman & Associates
Counsel for the Respondent:	Mr J D Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 May 2003
Date of Judgment:	21 May 2003