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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.

Shrestha v Minister for Immigration & Multicultural & Indigenous Affairs [2

Shrestha v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 103 (21 May 2003)
Last Updated: 22 May 2003


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


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