Lin v Minister for Immigration
[2005] FMCA 1036
•27 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION | [2005] FMCA 1036 |
| MIGRATION – Cancellation of student visa – application for summary dismissal – failure to comply with directions to file amended application and particulars. |
| Applicant: | XUAN LIN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3137 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 July 2005 |
| Date of Last Submission: | 20 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2005 |
REPRESENTATION
| The Applicant representing herself |
| Solicitors for the Respondent: | Ms S. Koya, Phillips Fox Lawyers |
ORDERS
Grant leave to the Applicant to file and serve an Amended Application particularising any grounds of review sought to be relied upon together with any further evidence upon which the Applicant seeks to rely either by way of Affidavit of other material by 9 September 2005.
Direct the Applicant to file and serve any written submissions no less than 14 days prior to the hearing date.
Direct the Respondent to file and serve any written submissions upon which she intends to rely no less than 7 days prior to the hearing date.
The matter is otherwise adjourned for hearing to 1 November 2005 at 10.15am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3137 of 2004
| XUAN LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The Respondent seeks summary dismissal of the Application filed
21 October 2004 by the Applicant seeking judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) given on
27 September 2004. The Tribunal decision affirmed the decision of the Minister’s delegate made on 6 April 2004 to cancel the student visa held by the Applicant. In reliance of her interlocutory application, the Respondent read the Affidavit of Stella Koya sworn 15 July 2005.
The Application is in the following terms:
“It is unfair if DIMIA cancelled my student visa without considering my exceptional situations. I hope Federal Court would put me back to the track.”
On 4 November 2004 directions were made by this court by consent and in the presence of the Applicant. Those directions included, relevantly, the following paragraphs:
“3. The applicant file and serve any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 27 January 2005.
“4. The applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 27 January 2005.
“5. If the applicant does not comply with order 4, the respondent may request the Registry to list the matter in a non compliance list before the Docket Federal Magistrate with the intention of applying for summary dismissal. The respondent must give the applicant 5 days clear notice of the time, date and place of that listing.”
The Applicant failed to comply with Orders 3 and 4 of those directions.
The Applicant appeared today unrepresented, although with an interpreter to assist her. She stated that she did not file any material because she did not know what to file and in any event she had no further evidence or documents to file at this stage. She said that she did not know what the hearing was about or what was happening. She agreed that she had received an email form the legal representative for the Respondent informing her of the date and time of this interlocutory hearing.
The Applicant gave no response when asked by me if she had taken any steps to inform herself about what may be involved in complying with the directions made on 4 November 2004 or responding in any way to the letter of 12 May 2005 from the Respondent.
Further, the Applicant was unable to identify what may be the grounds of any amended application or the nature of any other material upon which she may seek to rely in support of any application to this Court.
On 12 May 2005 the Respondent wrote to the Applicant at the address identified by her as her address for service on her Application filed
21 October 2004. The letter notified the Applicant of her non compliance with the directions made on 4 November 2004 and further stated the following:
“If we do not receive a fully particularised Amended Application before 23 May 2005, we will proceed to have this matter listed in the non compliance list with a view to having it summarily dismissed.”
On 8 June 2005 the Respondent again wrote to the Applicant at the same address as above informing her that the matter had been listed for a “Non Compliance Hearing” on 20 July 2005.
The Respondent’s letter of 12 May 2005 is the only notice by the Respondent to the Applicant of a possible application for summary dismissal. The letter bases any such application on a failure by the Applicant to comply with the direction made by this Court on
4 November 2004 requiring the Applicant to file an amended application.
Further, the Respondent’s letters of 12 May 2005 and 8 June 2005 make it clear that what is to occur on 20 July 2005 relates to a non compliance “list” or “hearing”. It is by no means clear on the face of those letters that the Respondent may seek summarily dismissal of the Applicant’s Application on that day for any reason other than a failure to file a “fully particularised Amended Application”.
In these circumstances, it would be unfair to the Applicant to deal with the Respondent’s application for summary dismissal for any reason other than non compliance with the directions of 4 November 2004.
In considering whether the Application should be summarily dismissed for non compliance with the direction to file an amended application, I have regard to the fact that this matter is otherwise set down for hearing on 7 November 2005. I also have regard to the fact that the Applicant is presently unrepresented. She has filed an application which, whilst not in proper form and unsupported by particulars, asserts the possibility of a claim of unfairness and a failure to consider exceptional circumstances. To my mind the interests of justice demand that the Applicant have a further opportunity to file material, including an amended application, together with particulars of any grounds sought to be relied upon at the hearing.
Given that this Court can offer the parties a hearing in early November 2005, just over 3 months away, I see little benefit to either party in standing the matter over for further directions or interlocutory hearing prior to the final hearing, other than the trial directions I propose to make today.
Accordingly, the Respondent’s application for summary dismissal on the basis of the Applicant’s non compliance with the directions of
4 November 2004 is refused.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 27 July 2005
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