Dirckze v Minister for Immigration
[2007] FMCA 1123
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DIRCKZE v MINISTER OF IMMIGRATION & ANOR | [2007] FMCA 1123 |
| MIGRATION – Summary dismissal – no appearance – application for adjournment refused. |
| Federal Magistrates Court Rules 2001, r.13.10 |
| Dirckze & Ors v Minister for Immigration & Anor (No.2) [2007] FMCA 743 |
| Applicant: | GRAHAM JEREMY DIRCKZE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 398 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 6 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the First Respondent: | Ms M. Ngo |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application filed 30 March 2007 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 398 of 2007
| GRAHAM JEREMY DIRCKZE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the First Respondent, by an application for summary dismissal filed 18 May 2007 seeks summary dismissal of the application pursuant to r.13.10A of the Federal Magistrates Court Rules 2001 (the Rules), specifically on the basis there is no reasonable course of action disclosed.
When the matter was called this day, the Applicant did not appear. In the circumstances the Court was minded to simply dismiss the substantive application on the grounds of non-appearance. However, in my view it is preferable where an application for summary dismissal is properly commenced and listed this day that the Court should proceed to determine whether, on the material and as a matter of law, the application should in fact be summarily dismissed.
It is noted that on the Court file the Applicant has, by correspondence dated 3 July 2007, requested an adjournment. It is also noted that the First Respondent, in reply to the Applicant's correspondence, has clearly indicated that the First Respondent would oppose the application for an adjournment and specifically in the correspondence dated 4 July 2007, the solicitor for the First Respondent states:
“… Accordingly, you must attend the Federal Magistrates Court for the hearing on Friday otherwise, the Minister will seek to have your application dismissed with costs.”
The basis upon which the Applicant sought an adjournment was purportedly a complaint against Victorian Legal Aid concerning what is alleged to be the conduct of the file and advice.
It is clear from documents attached to the Applicant's letter of 3 July 2007 that complaints have been investigated by Victoria Legal Aid and so much is evident by a letter dated 5 June 2007. Even if further inquiries were to be made by Legal Aid and, on the material before me, I am not satisfied there is any further inquiry to be made, that would not of itself provide any or any sufficient basis upon which this Court would grant the adjournment.
In my view the application for summary dismissal should proceed and would not be affected by whether the Applicant does or does not have any claim against solicitors.
On the basis of the material before me, it is appropriate in the circumstances to therefore reject and/or refuse the application for adjournment.
The First Respondent, in support of the application for summary dismissal, has provided submissions in relation to the application. Those submissions set out in some detail the following background facts.
“1.The applicant is a Sri Lankan national, who arrived in Australia on 30 January 1995 on a visitor (short stay) visa.
2.The applicant applied for a protection visa on 29 March 1995, which was refused, and the Refugee Review Tribunal affirmed the delegate’s decision to refuse to grant a protection visa on 17 May 1996.
3.The applicant then applied for a subclass 435 Sri Lankan (Temporary) visa on 26 June 1996, which was granted on 29 July 1996.
4.The applicant applied for a further subclass 435 Sri Lankan (Temporary) visa on 31 July 1997, but on 4 August 1997 a delegate of the first respondent refused the application.
5.On 23 February 2006 the Department of Immigration and Citizenship, as it is now known, re-notified the applicant of the decision of 4 August 1997 to refuse to grant him a subclass 435 Sri Lankan (Temporary) visa.
6.The applicant lodged a review application with the Migration Review Tribunal (the Tribunal) on 14 March 2006.
7.The applicant was represented by Victoria Legal Aid, who made a written submission to the Tribunal in May 2006 which acknowledged that the applicant did not meet the relevant criteria for the grant of a subclass 435 visa as his arrival date in Australia was 30 January 1995.
8.A Migration Review Tribunal hearing was held on 19 January 2007 when the Tribunal took oral evidence, and the applicant confirmed to the Tribunal that he was unable to meet the essential criterion specified under Regulation 435.213 because he had first entered Australia after
1 November 1993.
9.On 23 January 2007 the applicant requested the opportunity to provide further written submissions to the Tribunal, which were received on 9 February 2007.
10.On 13 February 2007 the Tribunal decided to affirm the delegate’s decision of 4 August 1997, and wrote to advise the applicant of its decision on 5 March 2007.
11.The current review application relates to this Tribunal decision, and was filed on 30 March 2007.”
The contentions for and on behalf of the First Respondent are likewise set out in clear terms as follows:
“12.An essential criterion that applied to subclass 435 Sri Lankan (Temporary) visa applications as at 31 July 1997, when the application was made, was clause 435.213 of the Migration Regulations 1994:
‘435.213 The applicant entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit’.
13.The applicant was unable to meet his criterion because he first entered Australia on 30 January 1995, as evidenced by Department of Immigration and Citizenship records.
14.The Tribunal found that the applicant did not satisfy an essential criterion for the grant of the visa applied for, and concluded that the application could not succeed.
15.The Tribunal was justified in its conclusion, based on the facts of the case.
16.The Tribunal had no option but to find that the applicant did not meet an essential criterion for the grant of the subclass 435 visa. The review application should therefore be dismissed because it has no reasonable prospects of success.”
The First Respondent otherwise relies upon an affidavit of Maria Ngo, sworn 18 May 2007, which recites the background chronology in this matter. It is not necessary for me to otherwise to refer to the details in that affidavit, save to note that this Applicant has been a party in a number of proceedings over a period of time and has actively pursued various proceedings since arriving in Australia on 30 January 1995.
It is clear to me on the chronology of facts and on the material set out in the affidavit that the principles to be applied in this instance are similar, if not identical to, those matters considered by this Court in Dirckze & Ors v Minister for Immigration & Anor (No.2) [2007] FMCA 743 (Dirckze). I adopt the Court's reasoning in that matter which, in my view, applies with equal force to the present application. It is clear, having regard to the contentions of the First Respondent and applying the relevant law, which I have previously referred to in the matter of Dirckze, who I note happens to be the brother of the present Applicant, that it is appropriate that I summarily dismiss this application as I am satisfied that applying the relevant law and having regard to the chronology that there is indeed, as asserted by the First Respondent, no reasonable cause of action in this matter.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 6 July 2007
0
1
1