Jiang v Minister for Immigration (No.2)
[2005] FMCA 847
•15 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JIANG v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 847 |
| MIGRATION – Review of MRT decision – application for summary dismissal on ground that no reasonable cause of action shown – where applicant is excluded from definition of visa applicant by reason of his marriage. |
| Migration Act 1958, ss.359, 360 Federal Magistrates Court Rules 2001 |
| Kosi v Minister for Immigration [2003] FMCA 340 |
| Applicant: | TAO JIANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1004 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 June 2005 |
| Date of Last Submission: | 15 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1,200.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1004 of 2005
| TAO JIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceeding before me today is a notice of motion issued on 7 June 2005 for summary judgment upon the applicant's application for judicial review of a decision of the Migration Review Tribunal made on 30 March 2005. The application is brought pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules which provides:
“The court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the court that:
(a) No reasonable cause of action is disclosed in relation to the proceeding or claim for relief ...”
The applicant is a young man of 25 years of age. He was included in his parent’s application for a Business Skills (Residence) Visa submitted to the Department of Immigration in September 1999. That application was first refused by a delegate but was reviewed on the 26 September 2002 and remitted to the Department with a direction that the primary visa applicant now met criterion 845.215 of part 845 of Schedule 2 of the Regulations. I understand that the principal visa applicant was granted the visa which she applied for.
On 4 December 2002 the applicant before me wrote to the department advising it that he had married on 2 April 2002 and that on 28 November 2002 a child was born to him and his wife. 4 December 2002 was a date before the final decision was made by the department on the application of the mother. Thus, when the decision was made, Mr Jiang was a married person.
These matters were raised with the principal visa applicant by a facsimile to her migration adviser dated 19 December 2002. It would appear that the decision in relation to the mother was made in or about March 2003.
This applicant was informed by letter of 3 December 2004 that the fact that he was married took him outside the regulations permitting a dependent child to be part of a visa applicant's application and that this would be a reason or part of the reason for making the decision unfavourable to his application. The letter set out the relevant regulations.
Regulation 1.12 describes a member of a family unit which includes a dependent child of the family head or of the spouse of the family head. Dependent child is then defined in the following way:
“Dependent Child
Means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:
(a) Who:
(1) has not turned 18; and
(2) is wholly or substantially in the daily care and control of that person; or
(b) Who:
(1) has turned 18; and
(2) is dependent on that person; ...”
As at the date upon which the principal applicant and this applicant’s visa applications were considered, he was a natural child of the principal applicant but was also a spouse. For this reason because he did not fall within the definition of a dependent child he was not entitled to be considered as such in connection with his parent’s application.
The applicant issued an application in this court on 21 April 2005 seeking review of the decision of the Tribunal. His grounds appear to be that his mother, as the principal visa applicant, was not informed of the decision of the Tribunal relating to him and that this constituted a breach of s.360 of the Migration Act 1958 (Cth) (the “Act”) because the principal applicant was not given an opportunity to appear at the hearing. He also stated that the Tribunal had not given the principal visa applicant procedural fairness by not informing her of the concerns that the Tribunal had about this applicant's visa status.
It seems to me that this application is doomed to failure under any circumstances. Mr Jiang is the visa applicant in this case and not his mother. She has a visa. Mr Jiang was given the requisite notice under s.359 of the Act. I cannot see that the Tribunal made a jurisdictional error by not inviting his mother to appear at the hearing. Mr Jiang is a young man over the age of 18 years who can speak for himself. There is nothing that his mother could have added which would have had the effect of nullifying his marriage. It is that marriage which takes him out of the definition of dependent child.
Even if I am wrong about this I am of the opinion that no judicial officer hearing the application for review would exercise his or her discretion to grant review on the grounds of some procedural unfairness when it is quite clear that if the matter was referred back to the Tribunal the result would have to be the same.
For these reasons I propose to take a course, which the cases indicate should only be taken on rare occasions, of dismissing this application for review on the grounds sought by the respondent. I am supported in my views by the decision of Federal Magistrate Driver in Kosi v Minister for Immigration [2003] FMCA 340 where there was similarly an inevitable decision that the applicant could not satisfy the criteria for the grant of a visa.
The substantive application is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $1,200 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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