Applicant M222 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 646

FEDERAL COURT OF AUSTRALIA

Applicant M222 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 646

MIGRATION – Application for extension of time – Protection visa

PRACTICE & PROCEDURE – Where failure of applicant to attend hearing – Evidence of prior correspondence with applicant in relation to hearing date – Application for dismissal – Dismissal for non-attendance

Federal Court Rules O 32 r 2(1)(c) and O 35 r 7
Migration Act 1958 (Cth) s 417

APPLICANT M222 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ORS

V 258 of 2004

CRENNAN J
21 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 258 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
In the matter of an application for an order nisi

BETWEEN:

M222 of 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MS G HAMILTON SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR ADOLFO GENTILE IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

CRENNAN J

DATE OF ORDER:

21 MAY 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 258 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
In the matter of an application for an order nisi

BETWEEN:

M222 of 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MS G HAMILTON SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR ADOLFO GENTILE IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

CRENNAN J

DATE:

21 MAY 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. The applicant seeks an extension of time within which to make an application for an order nisi for the issue of writs of certiorari and prohibition. 

2. The background to the matter briefly is as follows.  The applicant is a Fijian national who arrived in Australia on 23 July 2000.  She and her two daughters arrived in Australia with valid Fijian passports on subclass 428 (Religious worker) visas.  On 7 June 2002 the applicant lodged an application for a protection visa (her two daughters were included in this application as part of her family unit).  On 11 July 2002 a delegate of the Minister refused to grant a Protection visa.  On 8 August 2002 the applicant applied to the Refugee Review Tribunal for review of that decision.  The Tribunal affirmed the delegate’s decision not to grant the protection visa on 18 December 2002.  Thus the application for an extension of time.

3. On 19 February 2003 the applicant applied to the Minister for review of the decision under s 417 of the Migration Act. On 26 June 2003 the Minister informed the applicant that he was not willing to exercise his discretion. On 18 July 2003 the applicant filed an application for an extension of time within which to make an application for an order nisi in this Court.  In her affidavit accompanying that application she claimed that “(she) was not aware that (she) could appeal to the Federal or High Court.”

4. The matter was fixed for hearing today.  The applicant did not appear when the matter was called on for hearing.  There was also a notice of motion for hearing this day filed on behalf of the respondent seeking a dismissal of this matter.  The first respondent’s counsel gave an undertaking to swear and file an affidavit this day giving details of numerous contacts made between the first respondent and the applicant in relation to today being the return date of the notice of motion seeking a dismissal of this matter. 

5. Given the fact that the applicant was not present today when the matter was called on for hearing and given the undertaking given on behalf of the first respondent, I am disposed to make an order to dismiss the application pursuant to O 32 r 2(1)(c) of the Federal Court Rules, which gives the Court power to dismiss the action when the party who is absent, when the matter is called on for hearing, is an applicant.  I note in this context the provisions of O 35 r 7 which empower the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default. 

6. Accordingly, this application is dismissed with an order that the applicant is to pay the respondent’s costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Associate:

Dated:  9 June 2004

Applicant appeared in person
Counsel for the Respondent:	Ms Hearn-Mackinnon
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	21 May 2004
Date of Judgment:	21 May 2004