MONIAGA v Minister for Immigration
[2005] FMCA 670
•5 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MONIAGA v MINISTER FOR IMMIGRATION | [2005] FMCA 670 |
| MIGRATION – Dismissal of application – no reasonable cause of action. |
| Migration Act 1958, ss.116(3), 359C Education Services for Overseas Students Act 2001, s.20 Migration Regulations 1994, condition 8202 |
| Dey v Victorian Railways Commissioners (1949) 78 CLR 62 |
| Applicant: | TOTO MONIAGA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 179 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 5 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 5 May 2005 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Mr. M. Brereton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 16 February 2005 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 179 of 2005
| TOTO MONIAGA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the respondent by notice of motion filed 1 April 2005 has sought an order that the application be dismissed on the basis it discloses no reasonable cause of action. I take the application by the respondent to be made pursuant to rule 13.10 of the Federal Magistrates Court Rules (the rules) and note that in support of the application for dismissal the respondent relies upon submissions in writing filed on 11 April 2005. The respondent further relies upon an affidavit of service sworn by Anastasia Bakas on 15 April 2005 wherein the deponent states that the applicant was served with a true copy of the notice of motion and submissions of the respondent by enclosing the documents together with a covering letter dated 14 April 2005 in an envelope addressed to the applicant and then gives an address in Doncaster. That address is the same address that appears in the original application and I am satisfied is the appropriate address for service upon the applicant. Hence, I am satisfied that this matter, although listed for final hearing in November this year, has been brought to the attention of the applicant and that the notice of motion should proceed this day, albeit that there is no appearance for the applicant.
The application for dismissal needs to be considered in the light of the background details set out in the respondent's submissions which are before the Court. The applicant is a national of Indonesia who is studying in Australia as the holder of a student temporary class TU visa subclass 573 higher education sector issued on 24 February 2003.
On 4 June 2004 the Melbourne Institute of Business and Technology, (MIBT) sent the applicant a noncompliance notice under s.20 of the Education Services for Overseas Students Act 2001. The notice stated that the applicant's attendance for semester 1 2004 was 67.86 per cent. MIBT advised the department that the applicant had not met attendance requirements. On 10 June 2004 the applicant attended a department office and was given a notice of intention to cancel for possible breach of condition 8202. The applicant attended an interview on 29 June 2004 and it was submitted that the visa should not be cancelled because many things had happened to him during this semester but, "I have met the remedies to solve the issues." The visa was cancelled on the same day. The reason for cancellation was noncompliance with condition 8202, that is, the applicant had not attained 80 per cent attendance. The applicant then applied to the Migration Review Tribunal on 7 July 2004.
By way of further background it is noted that on 22 November 2004 the Tribunal wrote to the applicant at the address provided in his application for review. The Tribunal invited the applicant to comment on his attendance figures and noted that if no response was received, the Tribunal could proceed to make a decision without obtaining a further comment or holding a hearing pursuant to s.359C of the Migration Act 1958 (the Act). No response was received and the Tribunal proceeded to make a decision without convening a hearing. It found the notice of intention to cancel particularised the breach of condition 8202 in sufficient detail and that the correct procedure had been followed. It found the applicant attended 67.9 per cent of scheduled classes for semester 1 of 2004 and that therefore there was a breach of condition 8202. I note that subs.116(3) of the Act, makes visa cancellation mandatory if prescribed circumstances exist. Subparagraph 2.432(b) of the Migration Regulations 1994 (the Regulations) provides that a breach of condition 8202 is a prescribed circumstance. Having found a breach of condition 8202, the Tribunal, it is submitted by the respondent and I accept, was then required to affirm the decision to cancel the visa.
By an application filed in this Court on 16 February 2005 the applicant states the following in the orders sought:
“(1)To quash the decision of Migration Review Tribunal affirming the decision of DIMIA.
(2)To remit the matter back to MRT for a fresh hearing. I was denied of the opportunity to present my case before MRT.
(3)The letter sent by MRT requesting further information did not come to me on time to reply back. I am sharing a house with many others and the MRT letters had been picked up by some other people”.
There is in fact no other material before the Court which would, in my view, satisfactorily identify any or any proper basis upon which this Court could undertake judicial review. The mere fact that the applicant asserts that he did not receive correspondence does not in any way detract from the Tribunal's rights and ability to proceed in the absence of the applicant, having regard to the relevant statutory provisions. It proceeded, in my view, correctly and was able to reach the conclusion it reached based on the material then available. Indeed, it may be argued that it had little or no other option other than to make the decision made for the reasons advanced for and on behalf of the respondent; that is, once the Tribunal had before it sufficient material demonstrating non compliance with the appropriate regulation, it seems clear to me that in the circumstances visa cancellation was mandatory and the Tribunal was required to affirm the decision to cancel the visa.
I cannot see anything in the material, including the application itself, which would suggest that there is any or any proper basis upon which this Court should proceed to review the matter. I am satisfied that in the material before me there is no reasonable cause of action. I am conscious of the fact that in exercising the discretion to allow summary dismissal of an application, the Court should exercise significant caution. In particular I note and apply the relevant authorities, including Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and the comments in particular of Dixon J, as he then was, at page 91 as follows:
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
This case is indeed a case which could properly be described as very clear indeed. There is no reasonable basis upon which the claim can proceed and it is clear to me that accordingly, as it discloses no reasonable cause of action. It is appropriate that the application be dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 May 2005
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