Gazerla v Minister for Immigration

[2006] FMCA 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAZERLA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 924

MIGRATION – Student visa – Migration Review Tribunal.

PRACTICE AND PROCEDURE – Summary dismissal.

Education Services for Overseas Students Act 2000, s.20
Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001, r.13.10

Applicant: NAVEEN KUMAR GAZERLA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 342 of 2006

Judgment of: McInnis FM

Hearing date: 26 June 2006

Delivered at: Melbourne

Delivered on: 26 June 2006

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Ms K. Miller

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 10 March 2006 be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001, on the grounds that the application has no reasonable prospect of success and/or the application is frivolous or vexatious or an abuse of process.

2. 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 342 of 2006

NAVEEN KUMAR GAZERLA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed by the First Respondent on 7 June 2006 by notice of motion seeking summary dismissal of an application filed 10 March 2006 by the Applicant. 

2. I am satisfied on the basis of an affidavit of service filed this day that the Applicant has been served with the notice of motion and affidavit in support, together with the outline of submissions of the First Respondent.  The Applicant has not appeared this day.  I am further satisfied that the First Respondent appropriately by a letter enclosed a sealed copy of orders made by the court on 29 March 2006, which in part made an order that the applicant file and serve any further and better particulars on or before 19 May 2006. 

3. The need for that order is obvious when one considers that in this instance the application filed by the Applicant purportedly seeking judicial review of a decision of the Migration Review Tribunal dated 13 February 2006 provides totally inadequate grounds.  The grounds indeed set out in the application are as follows:-

   "1. DIMIA - Refused.

   2.  MRT - Refused." 

4. The decision of the Tribunal had affirmed a decision cancelling the Applicant's Student (Temporary) (Class TU) visa. 

5. The Applicant is a national of India. On 28 April 2005 the Applicant applied for a student visa. The visa was due to expire on 22 September 2005. The background in the outline of submissions of the First Respondent reveals that on 18 August 2005 the Applicant's education provider, Central Queensland University, issued a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000.  The notice stated that the review Applicant had failed to achieve satisfactory academic results in the term running from 12 July 2004 to 20 June 2005, as he had failed five subjects out of the eight subjects in which he was enrolled.  Furthermore, according to the First Respondent's contentions, the Applicant according to the Tribunal had failed to meet the requirements of the student monitoring program.

6. It is perhaps not necessary to recite in detail the further chronology of events, save to note that on 31 August 2005 the Applicant attended the First Respondent's Department and was issued with a notice of intention to consider cancellation.  That notice set out a possible ground.  On 13 September 2005 the Applicant attended an interview with a delegate of the First Respondent.  After the interview, the delegate cancelled the Applicant's visa because the education provider had confirmed the Applicant had failed five out of eight subjects in which the Applicant had been enrolled and confirmed the Applicant did not achieve satisfactory academic results for the period 12 July 2004 to 20 June 2005.

7. I have already indicated the Tribunal affirmed a decision of a delegate to cancel the Applicant's visa, and did so after conducting a hearing where the Applicant was present and gave evidence on 17 January 2006.  The Tribunal in its reasons has in my view given detailed and appropriate consideration to relevant law and the facts, and after doing so has delivered a decision which in the circumstances in my view is free of any jurisdictional error. 

8. In this case, it is clear that the court in considering summary judgment must have regard to s.17A of the Federal Magistrates Act 1999 as amended.  It is important to note that summary dismissal is a significant step in the judicial process, and should not be considered without due caution given that summary dismissal results ultimately in an applicant being deprived of advancing further arguments. 

9. In this case there are simply no arguments set out in the application and no particulars provided by the Applicant despite the order made by the court on 29 March 2006 which would give any indication whatsoever of the basis upon which the application is being made to this court. Although I note that, now applying s.17A of the Federal Magistrates Act, it is not necessary for the court to conclude that this application is hopeless or bound to fail, for it to have no reasonable prospect of success, I am prepared in this case to draw that conclusion. It is clearly an application which is on the face of it hopeless or bound to fail. In any event, I am satisfied it certainly does not have any reasonable prospect of success, as it is clear that the application itself does not provide any or any adequate basis upon which the court could conclude that there are any arguable grounds at all in support of this application.

10. It is clear in the circumstances that the court should in this application accede to the application for summary dismissal pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.  It is appropriate therefore that the court makes the following orders:-

    (1)The Application filed 10 March 2006 be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001, on the grounds that the application has no reasonable prospect of success and/or the application is frivolous or vexatious or an abuse of process.

    (2)The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  26 June 2006