POOJA v Minister for Immigration
[2005] FMCA 1574
•23 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POOJA v MINISTER FOR IMMIGRATION | [2005] FMCA 1574 |
| MIGRATION – Student visa – applicant failed to appear – application dismissed. |
| Migration Act 1958 |
| Applicant: | JANI POOJA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | BRG 240 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 23 August 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 23 August 2005 |
REPRESENTATION
| Applicant: | Applicant failed to appear |
| Counsel for the Respondent: | Mr Scott McLeod |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Migration Review Tribunal be joined as a second respondent to these proceedings.
That the application filed 22 March 2005 be dismissed.
That the applicant pay a contribution to the costs of the first respondent fixed in the sum of $7,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 240 of 2005
| JANI POOJA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The Applicant in this matter is a Citizen of India who entered Australia on the 3 August 2003, having been granted on 24 July 2003, a student (subclass 573) visa bearing condition 8202. I am satisfied that the visa was granted to enable the Applicant to commence a Foundation Course at Griffith University on 21 July 2003 (ending 30 January 2004) s a precursor to anticipated enrolment into the Bachelor of Nursing (Pre-registration) program on 17 February 2004.
By way of further background, I adopt the summary set out at paragraphs 4 to 12 of the Respondent’s submissions which I incorporate in these reasons as follows:
4. By letter dated 3 February 2004, Griffith University advised the Department that the applicant had been enrolled in the Foundation program during the months of July-November 2003: had successfully completed the requirements of module one and decided to withdraw herself from the remainder of the program in December. Consequently, the applicant was withdrawn from the program as of 23 December 2003.
5. By letter dated 24 March 2004, the Department issued the applicant with a Notice of Intention to Consider Cancelling (“the Notice”) in respect to her student visa. The Notice outlined that on 19 December 2003 and 6 January 2004 Griffith University has reported the applicant from transferring to another course with another education provider, and at the time of issuing the Notice, the applicant had not enrolled in a full-time registered course of study. The applicant was invited to provide a response to the matters raised in the Notice by 13 April 2004 why her visa should not be cancelled.
6. The applicant subsequently telephoned and met with the Department delegate on 13 April 2004. The applicant advised that she was studying at Martin College, however, enquires subsequently revealed that the applicant had never studied at the College. The applicant was given until 20 April 2004 to respond to the Department’s Notice.
7. A Departmental file not records, Ms Wright, International Student Advisor, Griffith University, advised the delegate that the applicant had contacted her on 13 April 2004 insisting that she be allowed to enrol. However, Ms Wright informed the applicant that it was too late to re-enrol for that semester. Furthermore, the applicant had provided Griffith University a letter of offer dated 11 December 2003 from the University of Queensland for the Bachelor of Arts program and that Griffith University had no objection to the transfer. Subsequent inquiries revealed that the applicant had in fact been offered a place in the course at the University of Queensland, but the offer was never taken up.
8. On 5 May 2004, the Department received a response from the applicant in respect to the Notice. The letter raised a number of matters and stated that the course coordinator, Ms Bowles “was always trying to talk me out of the course ….. and I leave the course and go back home” and that Ms Bowles threatened and insulted the applicant. It was contended due to her own health problems and the action of Ms Bowles, the applicant missed classes more often. The applicant further stated that “cause my dad has got chest problems and my mum has low BP. I had grave danger for my parents – so I had to leave the course”. The letter concluded by asserting:
“Currently, I have secured my place with Australian College of Natural Medicine for Bachelors of Health Science starting this July [2004] semester.”
9. Departmental records reveal that the applicant contacted the Australian College of Natural Medicine in January 2004 and that she was advised in order for the letter of offer to be issued she had to obtain a letter of release from her previous education institution (Griffith University) along with a IELTS certificate. The applicant subsequently approached the College in April 2004 with the requested documents. A letter of offer for the Bachelor of Health Sciences (Homeopathy) course (August intake) was issued to her. Confirmation of enrolment would then be issued to the applicant upon payment of th course fee of $9,000.00 per year.
10. No confirmation of enrolment was issued to the applicant in respect to the College or from any other education provider.
11. By letter date 10 May 2004, the applicant was advised by the Department that it has determined to cancel her visa on 7 May 2004. Reasons accompanied the letter.
12. On 12 May 2004, the applicant filed an application for review to the Tribunal. The stated basis of the application was as follows:
“I believe that DIMIA’s decision was incorrect because the officer had incomplete information. And the information the officer had was false. I was being mislead by Griffith University and so was DIMIA. I have all the necessary evidence and arguments to prove that.”
Decision of MRT
In these ex tempore reasons, in circumstances where the Applicant has failed to appear personally before the Court, I merely note that after a hearing on 20 January 2005, at which the Applicant appeared, the learned member affirmed the delegate’s decision. The relevant factual findings to support this conclusion can be found at paragraphs 27 to 29 of the Reasons.
The Applicant then filed an Application in the Federal Court of Australia on 22 March 2005 which Spender J transferred to this Court with directions by order of 29 April 2005.
This unrepresented person did not articulate her case well. The only articulation by this Applicant is to seek to review the decision of the cancellation of the student visa, and her affidavit does not assist me at all because it says nothing. Additional to that, the Applicant has not complied with the directions made by the Federal Court on its transfer to this Court.
As a result I regard the Applicant as effectively having failed to appear.
Although a Solicitor Mr Stevenson appeared today as a courtesy to the Court, he informed the Court he has no instructions from the Applicant. The transcript sets out the difficult position Mr Stevenson found himself in.
The matter was properly listed today. I am satisfied that the Applicant has had the opportunity to be here and has failed to do so. It seems to me that it may be open for me to dismiss it on a summary basis, on the basis that there has just been failure to comply. I choose not to do so on that basis.
I think what is more critical is the fact that no evidence has been put before the Court that has identified anything remotely like jurisdictional error, and in the circumstances it's a privative clause decision that is protected by section 474 of the Act and I am bound to dismiss the Application. I have no other course but to dismiss the application and I do so.
I remind the Respondent that as this order is made in the absence of the Applicant, who has clearly failed to prosecute the action, an Application to set aside under Rule 16.05 of the Federal Magistrates Court Rules 2001 could be made, but would need to be supported by appropriate evidence before any such decision could be favourably exercised.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Baumann FM
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