Turkyucel v Minister for Immigration
[2005] FMCA 435
•8 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TURKYUCEL v MINISTER FOR IMMIGRATION | [2005] FMCA 435 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Student (Temporary) (Class TU) visa – no reasonable cause of action disclosed – failure to comply with orders of the Court – application dismissed. |
Migration Act 1958 (Cth), s.116(3)
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b), r.13.10(a)
Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Regulations 1994 (Cth), reg.2.43(2)(b)(ii), Sch 8 Condition 8202
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959
Webster v Lampard (1993) 177 CLR 598
Xie Wei Ming v Immigration Department [1999] FCA 365
Applicant A175/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 829
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Miller v Wertheim & Anor [2001] FMCA 103
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Chung v University of Sydney [2001] FMCA 94
Yo Han Chung v University of Sydney [2002] FCA 186
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574
Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460
| Applicant: | TURKYUCEL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2157 of 2004 |
| Delivered on: | 8 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms K Crawley of Clayton Utz |
ORDERS
The application is dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 for failing to disclose any reasonable cause of action.
The application is dismissed pursuant to Rule 13.03(2)(b) Federal Magistrates Court Rules 2001 for failing to comply with orders of the Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2157 of 2004
| TURKYUCEL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought to the Court by the respondent as an interim application seeking an order that the application be dismissed pursuant to the jurisdiction conferred by s.14 and/or 15 of the Federal Magistrates Act 1999 (Cth). Both parties appeared. The applicant is a self represented litigant who appeared without the assistance of an interpreter. The respondent solicitor filed written outline of submissions in support of the application and a Court Book has been prepared, filed and served.
The substantive hearing in this matter is listed for hearing on 27 July 2005 and there are serious deficiencies in the proceedings in that there have been orders to file amended pleadings and these orders have not been complied with. The applicant was originally legally represented in these proceedings but that party has filed a Notice of Ceasing to Act. I believe it is in both parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Magistrates Court of Australia on 13 July 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 16 June 2004 which affirmed the decision of the delegate of the respondent (“the delegate”) to cancel the applicant’s student visa.
Applicant’s background
The applicant first entered Australia as a holder of a subclass
560 (Student) visa on 25 February 2001. This visa was valid until
24 September 2001. The applicant was then granted a subclass
570 (Independent ELICOS Sector) visa on 19 July 2001 and this visa was also due to expire on 24 September 2001. On 21 September 2001 the applicant was granted a Bridging A visa while awaiting the outcome of a further student application. The applicant was then granted a further subclass 572 (Vocational, Educational and Training Sector) visa on 23 October 2001 and this visa expired on 15 April 2002. The applicant was then granted a Bridging A visa on 10 April 2002. On 5 June 2002 the applicant was granted a further subclass
572 visa, which was due to expire on 30 July 2004. This visa had, amongst others, Condition 8202 (Meet Course Requirements) attached (Court Book p.41) (“CB”).
The applicant’s subclass 572 visa was granted of the basis of enrolment in a package of courses. The first course was an intensive English course at the Alpha Beta College and a Diploma of Business at TAFE New South Wales (NSW). On 9 February 2004 TAFE NSW sent the applicant a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth), informing him that he was in breach of the conditions of his visa relating to attendance and negative performance and that if he failed to attend the office of the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) within 28 days then his visa would be automatically cancelled. The Notice stated that:
“Particulars of breach:
Student has not met either the Academic or Attendance requirements appropriate for the student visa regulations. The student has been sent a series of warning notices indicating this.” (CB p.41)
On 8 March 2004 the applicant attended a Departmental interview as required and was issued with a Notice of Intention to Consider Cancellation (NOITC). This notice stated:
“Breach 8202 – your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.” (CB p.41)
The Department invited the applicant to provide his comments at an interview on 18 March 2004. The Department contacted the applicant’s education provider, TAFE NSW, on 11 March 2004 and requested information for a review of the applicant’s attendance and academic progress for each term or semester he had been studying. In a return facsimile on 12 March 2004 the education provider certified that the applicant’s academic performance in Terms 1, 2, 3 and 4 of 2003 was unsatisfactory and made the following comments:
“Mr Turkyucel failed 11 modules and passed 6 in Semester 1. In Semester 2 he failed 4 modules and passed 1.” (CB p.41)
The education provided also made the following comments regarding the applicant’s attendance:
“I am unable to give you exact percentages of this student’s attendance as it was not entered of on our CLAMS computer system. However, his teachers have advised us that his attendance throughout 2003 has [been] extremely poor and certainly well under 80%.
Mr Turkyucel has been counselled throughout the year regarding his poor progress and performance. Numerous warning letters were sent to Mr Turkyucel but he failed to appear for several meetings which were organised for him.
Both Mr Turkyucel’s teachers and coordinator have spent considerable time trying to help him progress in his course but in November 2003, the Head Teacher advised that he thought the student was wasting both his time and our time as he is not attending, nor up to the course.” (CB p.42)
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)On 9 February 2004 the applicant was sent a Notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (CB pp.1-2).
b)On 8 March 2004 the applicant was sent a Notice of Intention to Consider Cancellation of Student (Temporary) (Class TU) visa (CB pp.3-4).
c)On 18 March 2004 the delegate cancelled the applicant’s student visa (CB pp.7-10).
d)On 29 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.16-20).
e)On 4 May 2004 the Tribunal wrote to the applicant inviting comment on information that would be the reason, or part of the reason, for affirming the delegate’s decision (CB pp.30-31).
f)On 16 June 2004 the Tribunal affirmed the delegate’s decision to cancel the applicant’s Student visa (CB pp.37-44).
g)On 13 July 2004 the applicant applied to the Federal Magistrates Court of Australia for a review of the Tribunal’s decision.
h)On 13 October 2004 the applicant attended a directions hearing before Registrar McIllhatton where orders were made that the applicant file and serve an amended application giving full particulars of each ground of review relied upon by 12 November 2004.
Regulations – Condition 8202
Pursuant to s.116(3) of the Migration Act 1958 (Cth) (“the Act”) and reg.2.43(2)(b)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”), the Minister must cancel a Student (Temporary)(Class TU) visa where the Minister is satisfied that the visa holder has not complied with condition 8202 of Schedule 8 to the Regulations.
At the time of the decision, condition 8202 relevantly stated:
“(1)A holder … must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course;
…
(3)A holder meets the requirements of this subclause if:
(a)In the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the course:
…
(ii)for a course that runs for at least a semester – for each term and semester of the course.
(b)In any case, the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
…
(ii)for a course that runs for at least a semester – for each term or semester.”
The Tribunal’s findings and reasons
The Tribunal was satisfied that the delegate followed the proper procedure in cancelling the applicant’s visa. The Tribunal found that it did not have any discretion to set aside a visa cancellation where the applicant had failed to comply with condition 8202. The Tribunal also found that the letter from TAFE NSW stated the applicant’s academic results were “not at least satisfactory” in terms 1, 2, 3 and 4 of 2003. The Tribunal concluded that clause 8202(3)(b) imposes a requirement for certification in positive terms. Having regard to the information provided by TAFE NSW, the Tribunal found the institution had not certified that the applicant’s academic results were at least satisfactory in each term of his course. On the basis of these findings, the Tribunal was satisfied the applicant failed to comply with condition 8202. It found that cancellation of the applicant’s visa was therefore mandatory in accordance with s.116(3) of the Act (CB p.43).
Respondent’s submissions
Ms K Crawley, Solicitor, appearing for the respondent filed written submissions prior to the hearing, which contained the following contentions:
a)Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) provides:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief, or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.”
b)Pursuant to r.1.05 of the Rules and O.54B r.5 of the Federal Court Rules, the words “no reasonable cause of action” must be construed to mean that “no reasonable basis for the application is disclosed”.
c)No reasonable basis for an application will be disclosed where:
i)the case of the applicant is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways NSW; SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs (“SZBWF”); SDAE v Minister for Immigration & Multicultural & Indigenous Affairs.
ii)it is apparent that the application must fail if the case were to go to trail in the ordinary way: Webster v Lampard; Xie Wei Ming v Immigration Department; SZBWF; Applicant A175/2002 v Minister for Immigration & Multicultural & Indigenous Affairs.
iii)one can say without doubt, on the whole of the material, that there is no real question to be tried: Fancourt v Mercantile Credits Ltd; Miller v Wertheim & Anor; Kosi v Minister for Immigration & Multicultural & Indigenous Affairs.
d)Where the applicant is unrepresented, and in considering whether or not to exercise its discretion to grant summary dismissal on the ground that no reasonable basis for the application is disclosed, the Court will not limit itself to the arguments put forward by the applicant but must independently consider whether an arguable case based on the material could be made out: Chung v University of Sydney at [7]-[14] upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney (“Yo Han Chung”); Kosi.
e)It was submitted that no reasonable basis for the application was disclosed in the present case. Condition 8202 was a mandatory provision that the applicant had to satisfy. The Tribunal found that he did not satisfy condition 8202, hence the Tribunal necessarily had to reject the application before it.
f)In the application filed on 13 July 2004, the applicant pleaded the following grounds of review:
“The applicant intends to argue that the member of the Migration Review Tribunal committed a jurisdictional error of law, in that it failed to consider the specific circumstances of the applicant, and had further taken into consideration information which were unsubstantiated by evidence.”
The ground does not identify the specific circumstances the Tribunal was allegedly meant to consider or the information that was unsubstantiated by evidence. On the fact of the Tribunal’s decision, it had considered all relevant information (CB pp.41-42) and had correctly identified and applied the correct law (CB pp.38-40). In determining whether the applicant had breached condition 8202, the Tribunal had no discretion to set aside the visa cancellation based on the circumstances of the applicant: Minister for Immigration & Multicultural Affairs v Hou; Minister for Immigration & Multicultural Affairsv Nguyen.
g)On 4 May 2004, in accordance with s.359 of the Act, the Tribunal wrote to the applicant inviting comment on information that formed the reason, or part of the reason, for affirming the decision under review (CB pp.30-31). The applicant did not respond to that invitation (CB p.42). Pursuant to the provisions of ss.359C and 360 of the Act, the applicant was not invited to, nor was he entitled to attend, a hearing before the Tribunal.
h)It was submitted that the applicant has not filed and served on the respondent an amended application giving full particulars of each ground of review relied upon despite the order of the Court that the applicant do so by 15 December 2004.
Applicant’s submissions
The applicant did not make any submission when invited to respond to the Motion before the Court other than to state that he only received the letter regarding the Motion the week before the Court hearing. The applicant indicated he wished to continue with his current course in order to complete one year so he could transfer to a University in Turkey.
Reasons
The applicant’s original application dated 13 July 2004 and prepared with the assistance of his legal advisers, disclosed the ground of the application as:
“The applicant intends to argue that the member of the Migration Review Tribunal committed a jurisdictional error of law, in that it failed to consider the specific circumstances of the applicant, and had further taken into consideration information which were unsubstantiated by evidence.”
The applicant appeared before Registrar McIllhatton on 13 October 2004 and by consent agreed to Short Minutes of Order requiring the applicant to file and serve an amended application giving full particulars of each ground of review relied upon by 15 December 2004. The applicant was also ordered to file any supporting affidavit material to be relied upon including a transcript of the Tribunal’s hearing by
15 December 2004. At that time the date of the substantive application was listed for hearing on 27 July 2005. On 6 August 2004 the then applicant’s solicitor filed a Notice of Ceasing to Act together with an affidavit which was attached to a letter advising the applicant they were ceasing to act in these proceedings.
The orders made by Registrar McIllhatton on 13 October 2004 have not been complied with and the applicant was unable to supply any explanation for his failure to comply with those orders.
The applicant indicated from the bar table that his studies undertaken in 2004 and continuing in 2005 had been more successful than those undertaken by him at TAFE NSW. He also indicated he wished to have the substantive application deferred to allow him to complete his current year of study at the University.
I accept the submissions made by the respondent and those submissions have been reproduced above.
Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could have been made out: Yo Han Chung. A review of the Tribunal’s decision together with the material contained in the Court Book did not disclose any grounds under which the applicant would be likely to succeed if the matter was allowed to proceed to a final hearing. The applicant’s pleadings did not reveal any cause of action and this situation was not rectified by the applicant’s failure to file an amended application as directed.
Conclusion
For the reasons set out above, I order that the application filed on
13 July 2004 be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 on the basis that no reasonable cause of action was disclosed in relation to the proceeding or claim for relief.
Further, I order that the application filed on 13 July 2004 be dismissed pursuant to r.13.03(2)(b) of the Federal Magistrates Court Rules 2001 on the basis that the applicant was in default of orders made by Registrar McIllhatton on 13 October 2004 to file and serve an amended application by 15 December 2004.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 13 April 2005
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