Hossain v Minister for Immigration
[2004] FMCA 787
•9 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION | [2004] FMCA 787 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a student (temporary) (class TU) visa. |
Migration Act 1958 (Cth), s.116
Judiciary Act 1903 (Cth), s.39B
General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 125
Webster v Lampard (1993) 177 CLR 598
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 279
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2003] FCA 677
Xie v Immigration Department [1999] FCA 365
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | MD BIPLOB HOSSAIN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2648 of 2004 |
| Delivered on: | 9 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The respondent’s Notice of Motion is upheld and the application is dismissed as incompetent.
The application is dismissed as an abuse of process pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules.
The applicant pay the respondent’s costs fixed in the amount of $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2648 of 2004
| MD BIPLOB HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By a Notice of Motion filed on 1 October 2004, the respondent moves the Court for orders that these proceedings be summarily dismissed on the grounds that no reasonable cause of action is disclosed and that these proceedings are an abuse of process of the Court. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 August 2001. The respondent tendered and applied for the following material to be admitted to evidence:
a)An affidavit of John Bird sworn on 29 September 2004 (“the affidavit of Mr Bird”);
b)A Court Book (“CB”), prepared by the Solicitor for the respondent, has been filed in these proceedings; and
c)Letters dated 5 October 2004, 6 October 2004, 20 October 2004, 4 November 2004 and 8 November 2004 were filed in Court, which represent correspondence from the respondent solicitors to the applicant notifying him of the Notice of Motion to be heard today.
Background
The applicants student (temporary) (class TU) visa was cancelled on
29 November 2002 under s.116 of the Migration Act 1958 (“the Act”). The applicant was notified of the decision on the same day. The applicant applied to the Migration Review Tribunal (“the MRT”) for a review of the decision to cancel the visa on 3 June 2004. On 24 June 2004, the MRT found that the application for review was ineligible because it was not lodged within the prescribed period stated in Regulation 4.10 of the Migration Regulations (“the Regulations”) as required by paragraph 347(1)(b) of the Act. As the decision was handed to him personally, the last date for lodging an application for review was 10 December 2002. The application was not lodged until
3 June 2004, more than 18 months outside this period. Paragraph 347(1)(b) of the Act and Regulation 4.10 of the Regulations requires that an application for review must be lodged within seven working days from the date of notification.
The MRT decided that the application for review of the decision was ineligible as it had not been filed within seven working days of the date of notification. The records of the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) indicate that if the applicant’s visa had not been cancelled it would have in any event expired on 14 March 2003.
The applicant received a notification of the decision to cancel the visa under s.116 of the Act. The document indicated under Item 5 that the visa the applicant held had been cancelled on 29 November 2002 and at Item 6 it set out the applicant’s rights of review and indicated that he had seven working days from the day on which he received the notice to file an application for a review and the date nominated as a closing time for that application was close of business on 10 December 2002. The notice had been issued by Rhonda Carter on 29 November 2002 at 11.25 a.m. The applicant, Mr Hossain, as the visa holder signed for that document on the same date at 11.30 a.m.
Submissions
Mr Bird, appearing for the respondent, submitted that the respondent accepts, as a matter of principle, that the exercise by a Court of a power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed is appropriate only where it is made to appear that the claim is “so clearly untenable that it cannot possibly succeed” (see General Steel Industries Inc v Commission for Railways NSW, Webster v Lampard, Lee v Minister for Immigration & Multicultural & Indigenous Affairs, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs, Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors and Xie v Immigration Department).
It was submitted that while accepting the Court’s power to summarily dismiss an application should be used only sparingly, particularly where the applicant is unrepresented, it is inevitable that this applicant would be unsuccessful if the application was heard on a substantive basis.
The respondent submitted that this particular application disclosed no reasonable cause of action in relation to this proceeding. Neither the Tribunal nor this Court has a discretion to extend the time by which an application for review may be made to the Tribunal. The applicable legislation mandated that the applicant had until 10 December 2002 to lodge a valid application for review to the Tribunal. It was further submitted that the applicant did not make the application until 3 June 2004 and therefore the Tribunal could make no other decision than declare the application to be ineligible for consideration.
It was submitted:
a)In SZAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 560, Scarlett FM summarily dismissed an application on the basis that the application “was doomed to fail if it were heard on a substantive basis” and that “no cause of action reasonable or otherwise” was disclosed. This decision was upheld in the Federal Court on appeal in SZAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 275 (19 March 2004); and
b)In Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340, the Court summarily dismissed an application for review of a decision of the MRT refusing the grant of a bridging visa. Federal Magistrate Driver held that if that application were to proceed to a hearing it would necessarily fail
The respondent submitted that the application was futile and foredoomed to fail. The Department’s records indicated that if the applicant’s visa had not been cancelled it would have expired on
14 March 2003. From this fact alone, it was submitted, there was a strong inference that the applicant was engaging in an abuse of the process of the Court.
The applicant appeared self represented. When invited to make oral submissions, the applicant limited his submissions to making requests for further time in order to locate a legal adviser to assist with the preparation of his case. Where an applicant is self represented, the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors.
Conclusion
The applicant’s student visa was cancelled on 29 November 2002 and he had done nothing to challenge that cancellation until he was arrested by Departmental Compliance Officers and placed in detention. On 24 June 2004 the Tribunal notified the applicant that he was ineligible for review. Again, the applicant took no action to seek assistance that could be demonstrated to the Court. The respondent solicitor wrote to the applicant on five (5) occasions notifying him of the Notice of Motion and again nothing was done until the day of the hearing, when he applied to me in writing seeking more time. When invited to explain to me in detail the general reasons he needed more time and the length of time required, the applicant declined the invitation.
I accept the submission of Mr Bird and adopt the respondent’s argument. I uphold the respondent’s Notice of Motion and dismiss the application as incompetent.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 November 2004
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