SIDDIQUI v Minister for Immigration

[2004] FMCA 961

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIDDIQUI v MINISTER FOR IMMIGRATION [2004] FMCA 961

MIGRATION – Application to set aside MRT decision – application by respondent Minister to have the matter summarily dismissed – where applicant applied for a temporary student visa – where applicant did not hold a substantive visa at the time he made his application – where applicant unable to satisfy mandatory requirements of the Migration regulations – where applicant failed to provide particulars in his application relating to his application for judicial review – whether the application discloses no reasonable cause of action.

Federal Magistrates Court Rules 2001

General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236
SDAE v MIMIA [2003] FCA 959
Webster v Lampard (1993) 177 CLR 598
Xie v Immigration Department [1999] FCA 365
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87

Applicant: SIDDIQUI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2471 of 2003

Delivered on: 3 December 2004

Delivered at: Sydney

Hearing date: 3 December 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: No Appearance

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules.

2. Alternatively, and in addition to order (1), the application is dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules.

3. Applicant to pay the respondent’s costs assessed in the sum of $1,650 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2471 of 2003

SIDDIQUI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter, the applicant by way of an application filed in the court on 17 November 2003 seeks to set aside a decision of the Migration Review Tribunal which was sent to him on 20 October 2003.  The Tribunal had determined to affirm a decision that the applicant was not entitled to a student (temporary) (class TU) visa under sub class 572.

2. The reason for the Tribunal's decision was that the applicant had not satisfied clause 572.211 by being the holder of a substantive visa at the time he made his application for the class TU visa.  He was also unable to satisfy clause 572.211(3) which provided that if he was not the holder of a substantive visa at the time he made his application he was a person who had held a substantive visa within 28 days after the last substantive visa ceased to be in effect.  As the applicant's last substantive visa, a sub class 560 (student) visa ceased on 15 December 2000 and the application was made on 16 April 2002, this was more than 28 days after his sub class visa 560 had expired.

3. The matter came before the court on 7 April 2004 when the Registrar made orders requiring the applicant to file and serve an amended and particularised application by 31 May 2004.  The applicant did file an amended application on 28 May 2004 but the application seems to have concentrated not on the decision of the Tribunal or the delegate in relation to this matter, but more on the decisions which led to the cancellation of his original visa. 

4. On 28 September 2004, the respondent filed a notice of motion seeking to dismiss the proceedings under Rule 13.10(a) of the Federal Magistrates Court Rules on the grounds that no reasonable cause of action was disclosed. An affidavit of Sharon Anne Burnett was also filed.

5. The applicant has not appeared before me today.  I have been provided with an affidavit of service of Olivia Oi-Lam Mak dated 3 December 2004 indicating that she wrote to the applicant on 29 September 2004 providing him with a sealed copy of the notice of motion, a copy of the respondent's outline of submissions and the affidavit of Sharon Anne Burnett.  The letter then goes on to place in bold type the date and time of the hearing. 

6. Having had regard to the authorities in relation to an application that proceedings be dismissed because no reasonable cause of action is disclosed such as General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236; SDAE v MIMIA [2003] FCA 959; Webster v Lampard (1993) 177 CLR 598; Xie v Immigration Department [1999] FCA 365 and Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, I can say that I am satisfied that the case of the applicant is so clearly untenable that it cannot possibly succeed and it is apparent that it must fail. The reason being that the requirements of the regulations are mandatory and they were not complied with.

7. In addition the applicant has not appeared and I am therefore entitled to dismiss the application pursuant to Part 13 Rule 13.03A(c). The orders which I make shall be as follows:

   (1)Proceedings dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules.

   (2)Alternatively, and in addition to order (1), the application is dismissed pursuant to Part 13 Rule 13.03A(c) Federal Magistrates Court Rules.

   (3)The applicant pay the respondent's cost of this motion and of the proceedings assessed in the sum of $1,650 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 December 2004