Cao v Minister for Immigration and Multicultural Affairs

[1999] FCA 69

FEDERAL COURT OF AUSTRALIA

Cao v Minister for Immigration & Multicultural Affairs [1999] FCA 69

MIGRATION– dismissal of proceedings under Federal Court Rules O 32 r 2(1)(c) on the basis that the applicant has not appeared

Federal Court Rules O 32 r 2(1)(c)

REYNALDO CAO V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 789 OF 1998

JUDGE:         SACKVILLE J
DATE:           5 FEBRUARY 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 789 OF 1998

BETWEEN:	REYNALDO CAO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J.
DATE:	5 FEBRUARY 1999
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be 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	NG 789 OF 1998

BETWEEN:	REYNALDO CAO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J.
DATE:	5 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is the hearing of an application to review a decision made by the Refugee Review Tribunal (“RRT”) on 29 June 1998.  The RRT affirmed a decision made by a Delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the applicant a protection visa.

2. The applicant was represented by a firm of solicitors when he lodged his application for a protection visa on 12 December 1997.  However, he did not attend the hearing scheduled by the RRT on 23 June 1998, despite being informed that the RRT was not prepared to make a decision in his favour on the papers alone.

3. The applicant filed an application for review of the RRT’s decision.  However, the grounds for the application are not stated with any clarity or specificity and the applicant has never complied with the direction made that he file written submissions in support of the application.

4. When the matter was called on for hearing today, the applicant did not appear.  Mr Smith, who appears on behalf of the respondent, applies pursuant to the Federal Court Rules, Order 32 Rule 2(1)(c), for an order dismissing the action.  In support of the application, Mr Smith has read an affidavit from his instructing solicitor, the Australian Government Solicitor (“AGS”).  This affidavit indicates that, shortly before the last directions hearing which was held on 30 October 1998, the applicant contacted the AGS and advised that his address had changed from that notified as the address for service in the application.

5. On 30 October 1998, the applicant appeared in person at the directions hearing.  On that date, I made orders for the conduct of the hearing, including setting down the matter down for hearing today, 5 February 1999.  The applicant was therefore present in Court when these orders were made.  On the same day, the AGS forwarded a letter to the applicant at the address he had nominated as his changed address, confirming the orders that had been made at the directions hearing.

6. On 4 February 1999, the AGS sent a letter to the applicant at his address as notified shortly before the directions hearing.  The letter enclosed a copy of the submissions that were to be put at this hearing on behalf of the AGS.  The affidavit also annexes a letter sent by my Associate to the applicant, reminding him that the matter was listed for hearing today at 2.15pm.  That letter was sent to the applicant at the address for service, as nominated in the application.

7. I should add that the applicant also attended the first directions hearing in this matter that was held on 18 September 1998.  While the letter of 4 February 1999 was not sent by the AGS to the address for service, I am nonetheless satisfied on the evidence that the applicant is aware, and has been aware, that the hearing has been set down for today. 

8. In these circumstances, I think it is appropriate to make the order that has been sought pursuant to the Federal Court rules, Order 32 Rule 2(1)(c).  I am fortified in that conclusion by the fact that the applicant chose not to attend the hearing scheduled by the RRT for 23 June 1998, despite being informed that a decision could not be made in his favour on the papers alone.  The applicant appears to have adopted a similar course in relation to this application for review.

9. Accordingly, I make an order dismissing the application.  I also order the applicant to pay the Minister's costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             5 February 1999

Counsel for the Applicant:	None
Counsel for the Respondent:	Mr J D Smith
Solicitor for the Respondent:	Ms H Dejean, Australian Government Solicitor
Date of Hearing:	5 February 1999
Date of Judgment:	5 February 1999