Applicant S1104 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 434

FEDERAL COURT OF AUSTRALIA

Applicant S1104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 434

Federal Magistrates Court Rules Rule 13.03A(c)
Federal Court Rules Order 35A rule 3(1)(a)

APPLICANT S1104 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 182 OF 2005

HELY J
6 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 182 OF 2005

BETWEEN:	APPLICANT S1104 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	6 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with 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	NSD 182 OF 2005

BETWEEN:	APPLICANT S1104 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	6 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 17 December 2004 Federal Magistrate Barnes dismissed an application to review a decision by the Refugee Review Tribunal (‘the RRT’) pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules when the applicant did not appear when the matter was listed for hearing.

2. On 9 February 2005 an application was made for leave to appeal to the Federal Court of Australia from that decision and for an extension of time in which to seek leave to appeal.  The matter was fixed for hearing before me this morning.  When the matter was called on for hearing, the applicant failed to appear.

3. The solicitor for the respondent, Ms Alexander, received a fax transmission from the applicant bearing date 4 April 2005, which I will have marked as Exhibit A, although the medical certificate stated in that transmission to have been enclosed was not in fact enclosed.  The applicant has not, so far as I am aware, been in contact with the Court seeking to explain his non-attendance.  Insofar as the fax transmission is a request for an adjournment of the hearing, the application for an adjournment is refused. 

4. There is nothing in the applicant’s affidavit in support of the application, nor in the application for leave to appeal, nor in the Federal Magistrate’s reasons for decision, which reveals any arguable case of error on the part of the Federal Magistrate in dismissing the application by reason of the applicant’s non-appearance.  In these circumstances, it is appropriate for me to make an order pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules that the proceedings be dismissed, as the applicant has, in addition to his earlier failure to appear before the Federal Magistrates Court, failed to appear before this Court.

5. The application is dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             14 April 2005

The applicant did not appear
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 April 2005
Date of Judgment:	6 April 2005