Applicant S 421 of 2002 v Minister for Immigration &Multicultural and Indigenous Affairs

[2003] FCA 1187

FEDERAL COURT OF AUSTRALIA

Applicant S 421 of 2002 v Minister for Immigration &Multicultural & Indigenous Affairs & Ors [2003] FCA 1187

Federal Court Rules, O 30 r 5

APPLICANT S 421 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL, ROSLYN SMIDT MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND REGISTRAR, FEDERAL COURT OF AUSTRALIA
N337 OF 2003

JACOBSON J
22 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N337 OF 2003

BETWEEN:	APPLICANT S 421 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
ROSLYN SMIDT MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
REGISTRAR, FEDERAL COURT OF AUSTRALIA FOURTH RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	22 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.
2. The Applicant 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
NEW SOUTH WALES DISTRICT REGISTRY	N337 OF 2003

BETWEEN:	APPLICANT S 421 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
ROSLYN SMIDT MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
REGISTRAR, FEDERAL COURT OF AUSTRALIA FOURTH RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	22 OCTOBER 2003
WHERE MADE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was called on for directions before me this morning.  Mr Chami, solicitor who appeared for the Minister, read an affidavit sworn by him on 22 October 2003, which discloses that the solicitor on the record does not have instructions to prosecute the proceedings.

2. Indeed Mr Chami deposes to a conversation with the solicitor which states that the Applicant left Australia in August without letting the solicitor know and that the solicitor did not have any contact details for him.

3. A letter was annexed to the affidavit from the Applicant's migration agent.  The letter is addressed to the Onshore Refugee Operations of the Department of Immigration and Multicultural Affairs.  Mr Chami informs me that he received the letter only very recently.  The letter states that the client is no longer interested in keeping his refugee application open for consideration.  It is apparent from the letter that the Applicant has evinced an intention not to prosecute the proceeding.  Accordingly it seems to me that Mr Chami is correct in seeking to have the proceeding dismissed for want of prosecution under Order 30 rule 5 and I make that order. I also order the Applicant to pay the Minister's costs of the proceedings.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             27 October 2003

Counsel for the Applicant:	R Killalea
Solicitor for the Applicant:	I D Graham and Associates
Counsel for the Respondents:	Z Chami (solicitor)
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	22 October 2003
Date of Judgment:	22 October 2003