Cao v Minister for Immigration
[2005] FMCA 551
•28 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAO v MINISTER FOR IMMIGRATION | [2005] FMCA 551 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of Student (Temporary) (Class TU) visa. – application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with Court orders. |
Federal Magistrates Court Rules 2001 (Cth), Rule 13.03(2)(b)
Judiciary Act 1903 (Cth), s.39B
Education Services for Overseas Students Act2000 (Cth), s.20
Migration Regulations 1994 (Cth), Sch 8, condition 8202
| Applicant: | CAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 918 of 2004 |
| Hearing date: | 25 January 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms C Gray of Sparke Helmore |
ORDERS
The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 25 January 2005.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG918 of 2004
| CAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings were referred to this Court from a directions hearing before the Court Registrar on 25 January 2005. The Solicitor for the respondent moved the Court for orders that these proceedings be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court. After a brief hearing of submissions further interim orders were made setting out a revised timetable. The applicant was informed that if the orders were not complied with, then the substantive application would be dismissed by force of these orders. These orders and the reasons for judgment were subsequently prepared in Chambers.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Magistrates Court of Australia on 29 March 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 10 March 2004, affirming the delegate of the respondent (“the delegate”) made on 18 July 2003 to cancel the Student (Temporary) (Class TU) visa held by the applicant, Mr Yi Cao.
Applicant’s background
The applicant, who is a national of the People’s Republic of China, was born on 1 November 1984. He first entered Australia as a student on 28 January 2001 on a Student (Temporary) (Class TU) visa, subclass 560, which was granted on 20 November 2000 and was due to expire on 15 March 2004. Attached to the visa was condition 8202 (“Enrolment and course requirements”). The visa was cancelled on
18 July 2003 for failing to meet the requirements of condition 8202. On 2 July 2003 the Department of Education and Children’s Services issued the applicant a Notice under s.20 of the Education Services for Overseas Students Act2000 (Cth) stating that:
“Mr CAO Yi (Gary) commenced in SA government schools on 29/01/01 and was enrolled at Marryatville High School in Year 12 until 24 June 2003. The school has terminated Mr CAO’s enrolment due to non attendance, and poor productivity. Mr CAO was absent from school for unexplained reasons for 14.5 days in Term 2. This is approximately 30% of his course. Mr Cao was previously reported to DIMIA on 5 March 2003 for non attendance in Term 1 2003, during which he was absent from school for approximately 24% of his course …” (Court Book p.33) (“CB”).
On 4 July 2003 the delegate issued to the applicant a written Notice of Intention to Cancel the visa. The applicant was invited to attend an interview on 15 July 2003 to respond to that Notice (CB pp.35-38). On 18 July 2003 the delegate proceeded to cancel the applicant’s student visa on the grounds of lack of school attendance, failing all subjects, enrolment cancelled and breach of condition 8202 leading to mandatory cancellation of visa (CB pp.58, 60).
Respondent’s application
Ms C Gray, Solicitor, appearing for the respondent in the substantive matter made oral submissions in support of her application. It was submitted that the original application filed in the Federal Magistrates Court consisted of the following grounds:
“1.I request the court to consider my case carefully and thoroughly so as to reverse the MRT decision.
2.Allow me to continue my study in Australia so that I can get back on track in terms of normal study life.”
The two grounds as noted were the full extent of the application being made by the applicant and were not supported by any particularisation or affidavit material.
On 25 May 2004 the applicant appeared before a Registrar of the Court and consented to Short Minutes of Order requiring him to file and serve an amended application providing complete particulars of each ground of review to be relied upon by the applicant and any evidence upon which the applicant proposed to rely by 8 June 2004. On 15 June 2004 a document entitled “Amended Application” was filed by the applicant which contained the same grounds as noted above with three attachments as follows:
a)A letter from Ms Barbara Broadbent, the applicant’s nominated home stay parent;
b)A letter from St Paul’s College, South Australia confirming the applicant had been enrolled as a full-time student at the College from July to December 2003; and
c)
A Certificate of Attendance from Sydney International College of Business indicating the applicant attended the College from
2 February 2004 to 27 February 2004 with an attendance rate of 84%.
The respondent moved that the applicant had failed to disclose the grounds of review and had failed to comply with the Court orders requiring the filing of an amended application. The respondent sought for the matter to be dismissed for these reasons.
Applicant’s submissions
When the applicant was invited to make submissions in support of his substantive application he spent some time outlining the hardships he had endured at various stages of his schooling and the external factors which had attributed to his school attendance and poor performance.
Reasons
During the applicant’s oral submissions, he relayed his strong desire to continue with his academic studies and stated he had legitimate grounds for his non compliance with the requirements of condition 8202 of his Student visa. In order to give the applicant a chance to prepare and submit information to the Court, despite his earlier failures, I made interim orders setting out a new timetable to enable the applicant to demonstrate his claimed desire. The following orders were made:
“1.The applicant file and serve an amended application giving complete particulars of each ground of review to be relied upon by 11 March 2005.
2.The respondent be given leave to file and serve any further submissions by 18 March 2005.
3.If the applicant did not comply with Order 1, then the matter would be dealt with by Federal Magistrate Lloyd-Jones in Chambers for summary dismissal.
4.Either party at liberty to apply to the Court for further directions.
5.If the applicant complied with Order 1, the substantive matter be listed before Lloyd-Jones FM on 10 March 2006 at 2.15 p.m. at John Maddison Tower.
6.The applicant to file and serve written submissions five days prior to the hearing.
7.The respondent to file and serve written submissions two days prior to the hearing.”
On 11 March 2005 the applicant filed a document headed “Statement by applicant Yi CAO” which contained the Federal Magistrates Court of Australia file number. The rest of the document was set out as a number of statements. The document did not identify any error which demonstrated jurisdictional error on behalf of the Tribunal but took the form of a re-statement of the facts presented to the delegate and was contrary to the information recorded in the delegate’s decision of the meeting held between the delegate and the applicant. Some of the material related an explanation regarding the applicant’s failure to attend class and his poor academic performance. The document also requested that the information should be viewed in a different light.
The respondent’s Solicitors took the opportunity given to them under the orders and filed a letter dated 29 March 2005 with the submission that the document filed by the applicant was void of grounds for judicial review and provided no particulars. The document was not an amended application giving complete particulars of each ground of review. Accordingly, the respondent’s Solicitor requested I make an order in Chambers dismissing the application with costs.
I am satisfied that at the hearing on 25 January 2005 time was spent explaining to the applicant the requirements of this Court in order that this matter could proceed. I am also aware of the difficulties that a self represented litigant may experience in pursuing a matter before the Court, however I believe this applicant has been given adequate opportunity to prepare for this matter and the necessity to file pleadings which comply with the Court’s requirements was explained to him. On the current pleadings this matter would have no chance of success at a final hearing and it would be unwarranted to allow further Court time to be spent on an issue where no jurisdictional error has been identified and the Court Book materials do not disclose an issue which may be agitated.
On 7 April 2005 the applicant filed a further document identified as “Written Submission”. The filing of this document was well outside the time set down when orders were made on 25 January 2005. It was also the applicant’s second submission made in respect of the orders. However, in the circumstances, as the applicant was a self represented litigant, I have reviewed the contents of the document to determine whether any new issue had been raised. The applicant pointed to four issues but they were not new, having already been canvassed during the hearing and the subsequent documents. Regretfully, the matters raised were not supported by the evidence already disclosed and do not further assist the applicant’s cause. The balance of the document was a reproduction of condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) which the applicant believed assisted his argument in respect of the first three issues raised. This was not the case and I do not believe there was any reason to change the views I have expressed above.
Conclusion
As the applicant has not disclosed any arguable ground of review, I believe the substantive application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 April 2005
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