MZWPY v Minister for Immigration
[2005] FMCA 836
•4 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWPY v MINISTER FOR IMMIGRATION | [2005] FMCA 836 |
| MIGRATION – Review of Migration Review Tribunal decision – application summarily dismissed. |
| Migration Act 1958 (Cth) |
| Applicant: | MZWPY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1100 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 May 2005 |
| Date of Last Submission: | 4 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr New |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant do pay the respondent's costs, fixed at $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1100 of 2004
| MZWPY |
Applicant
And
| MINISTER FOR MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for the judicial review of a decision of the Migration Review Tribunal (‘the MRT’) made on 15 March 2004. The grounds of the application are as follows:
1. The respondent failed to observe the proper procedures with regard to the Applicant and to act in accordance with substantial justice.
2. The Respondent exceeded its jurisdiction.
The applicant did not attend today to respond to the notice of motion seeking a dismissal of his application.
The applicant was a student in Australia on a student visa. The visa was cancelled as a result of the applicant's results: that is, that the MRT concluded that the applicant breached condition 8002 of his visa condition in semester two of 2002 and semester one of 2003 with respect to academic performance, having regard to his results at the institution at which he was studying.
The MRT had before it a letter of 14 August 2003 from the institution advising that the applicant's attendance was below satisfactory, and a letter of 11 December 2003 from the institution advising that he failed 11 out of 13 subjects in semester two of 2002 and then failed 12 out of 12 subjects in semester one of 2003.
The MRT wrote to the applicant pursuant to section 359A of the Act and it did not receive a response from him. The MRT then proceeded to make a decision affirming the decision of the delegate.
The applicant filed his application in this court on 23 August 2004. Not surprisingly, Registrar Mussett ordered that the applicant file and serve an amended application containing proper particulars by 16 February 2005, and contentions of fact and law by 2 March 2005. The applicant has done neither. It may be that order 2 of Registrar Mussett's orders could be considered to be directory rather than mandatory due to its wording. However, the applicant has clearly breached order 4.
On the material before me there is nothing to indicate any error on the part of the MRT.
In the circumstances I find that the application should be summarily dismissed pursuant to rule 13.10 on the basis that no reasonable cause of action is disclosed and that it appears that the proceedings are frivolous or vexatious. Also, the applicant has not appeared and therefore it can be dismissed under rule 13.03A. Each of these basis appears to me to be an independent basis for dismissing the application.
In the circumstances, the application is dismissed.
In this case the amount sought is $3,500.00. Having regard to the scale in the Federal Magistrates Court and the work that appears to have done on the matter looking at the documents on the court file, I find that the sum of $2500 is reasonable for costs.
I order that the applicant pay the Minister's costs, fixed at $2,500.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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