WANG v Minister for Immigration

[2004] FMCA 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION [2004] FMCA 40

MIGRATION – Summary dismissal.

Migration Act 1958, ss.116(3)
Federal Magistrates Court Rules 2001, r.13.10(a)

Applicant: QUIAN WANG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 1176 of 2003

Delivered on: 22 January 2004

Delivered at: Melbourne

Hearing Date: 22 January 2004

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: Joseph Belbruno

Counsel for the Respondent: Ms. M. Northrop

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application for Order to Review filed 24 October 2003 be dismissed.

2. The Applicant shall pay the Respondent's costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1176 of 2003

QUIAN WANG

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter by Notice of Motion the Respondent seeks an order that the Application for Order to Review be dismissed.  The Application by the Applicant, which was filed on 24 October 2003, seeks orders for review of a decision that was made by the Migration Review Tribunal on 29 September 2003 to affirm the decision under review to cancel the Applicant's student temporary class TU visa.

2. When the Notice of Motion was listed before this court, I am satisfied that at all material times the solicitor on record for the Applicant was Mr Joseph Belbruno and that there is no material before this court to suggest that solicitor no longer acts for and on behalf of the Applicant. 

3. I have also granted leave to the Respondent to file in court this day an affidavit of service of Merinda Northrop sworn on 21 January 2004 verifying that service at the Applicant's address for service of the Notice of Motion and affidavit in support had been effected by letter forwarded on 10 December 2003. 

4. The matter was called and there was no appearance for either the Applicant or the Applicant's solicitor.  In the circumstances, it seems to me appropriate that I should deal with the matter in the absence of the Applicant or the Applicant's solicitor.

5. In support of the Notice of Motion seeking to dismiss the Order to Review, the Respondent relies upon the affidavit of Merinda Jane Northrop sworn 5 December 2003.  Essentially, the affidavit recites the background information, and I shall incorporate in this judgment the relevant paragraphs from the affidavit which set out the history of this application.  It is sufficient for the present purposes to note that in my view where it is clear on the material before the court that there is no arguable case, and there is no prospect of success and applying authorities, which I shall incorporate in this judgment in relation to the issue of summary dismissal.  It is appropriate that at an early stage the court deal with the matter in a summary manner.

6. It is appropriate, therefore, that there be a Notice of Motion and the Notice of Motion should be brought before the court to enable this court to exercise its powers under rule 13.10(a) to dismiss the matter at an early stage.

7. In my view, having regard to the contents of the affidavit, which I take to be the submissions made for and on behalf of the Respondent, it is clear to me this Application is an Application totally without merit, and I am satisfied there is no reasonable cause of action disclosed in circumstances where it seems that on a proper reading of ss.116(3) of the Migration Act the Minister must cancel the visa if the holder has not complied with the Mandatory Condition 8202.

8. In those circumstances, I am satisfied that in this Application, it is appropriate to make the orders sought by the Respondent on the Notice of Motion. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  22 January 2004