Chen, Pin Zhong v Minister for Immigration and Multicultural Affairs

[1998] FCA 486

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1158 of 1998

BETWEEN:	PIN ZHONG CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		SACKVILLE J
DATE:		22 APRIL 1998
PLACE:		SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:  The respondent moves on a notice of motion, filed on 3 April 1998, seeking an order that the application be dismissed.  Mr Pearson, who appears for the respondent, relies upon Federal Court Rules, O 10 r 3(2).  That subrule provides as follows:

“If no applicant appears before the court on a directions hearing the court may dismiss the application or make any other order which it thinks proper.”

The proceedings were commenced by the filing of an application on 30 December 1997.  The application was not, so it appears, prepared by a solicitor or other representative of the applicant.  The application seeks review of a decision made by the Refugee Review Tribunal (“RRT”) on 4 December 1997, in which the RRT found that the applicant was not a refugee and affirmed a decision not to grant him a protection visa.  The application states that the applicant's address for service is 19/200 Railway Parade, Cabramatta. 

The applicant is said to be aggrieved by the decision of the RRT because :

“1.The applicant believes that he is a refugee and therefore satisfied requirements to be granted a protection visa.

2.[The RRT] failed to assess the application of the applicant in accordance with pertinent statutory requirements as prescribed in the Migration Act 1958 (Cth), thereby denying the applicant the benefit of a protection visa.”

The grounds of the application are stated to be that procedures that were required to be observed in connection with the making of the decision were not observed; that the decision involved an error of law;  and that there was no evidence or other material to justify the making of the decision.  The application does not provide any further details of the applicant’s case beyond these uninformative grounds.

The sequence of events following the filing of the application is set out in the affidavit of Mr Pearson of 15 April 1998.  The sequence is set out below.

On 5 February 1998, the matter was listed for a directions hearing before me.  The applicant did not appear.  The matter was stood over for a further directions hearing on 19 February 1998.  However, the respondent was directed to notify the applicant that the matter had been adjourned until 19 February 1998.

On 9 February 1998, the Australian Government Solicitor sent a letter to the applicant at his address for service, which is in fact a private post box, noting that the matter was listed for a further directions hearing on 19 February 1998, at 9.30 am.  The letter stated that the applicant or his representative should attend that directions hearing.  The letter also stated that if no appearance was made by the applicant or on his behalf at the directions hearing the writer anticipated that steps would be taken to have the application dismissed with costs.

On 18 February 1998, the applicant sent a letter directly to me, with a copy to Mr Pearson at the office of the Australian Government Solicitor.  That letter acknowledged that a directions hearing had taken place on 5 February 1998.  It also expressed the applicant's understanding that it was most important that he should have a qualified legal practitioner appear at court on 19 February 1998 at 9.30 am.  The letter continued as follows:

“However, considering my current poor financial situation, it is very difficult for me to get a qualified legal practitioner for my application. I am trying my best to get some financial support from my friends, but I do indeed need some times [sic].  Would you please kindly suspend my case for the time being.  As soon as I get my legal practitioner, I will inform the court immediately.”

On 19 February 1998, the directions hearing took place as scheduled.  Again the applicant made no appearance.  On that occasion, I made orders that the Minister file and serve any affidavit upon which he intended to rely in the principal proceedings on or before 19 March 1998.  The matter was stood over for a further directions hearing on 26 March 1998.  The Minister was directed to communicate with the applicant and inform him that the matter had been stood over, in part, in order to enable him to obtain legal representation and that he or any legal representative on his behalf should appear on that date.

On 25 February 1998, the Australian Government Solicitor sent a letter to the applicant at his address for service.  The letter stated as follows:

“3.The Court also asked me to explain to you that one reason for the adjournment is to allow the Minister sufficient time to put on the evidence submitted by you to the Refugee Review Tribunal.

4 The second reason for the adjournment was to allow you sufficient time to obtain legal advice and/or representation.  As noted above, the next directions hearing is on 26 March 1998 at 9.30 am.  If you do not have a legal representative, you should attend the directions hearing in person.”

It will be seen from that letter that the applicant was advised specifically that if he did not have legal representation he should nonetheless attend the directions hearing himself.

On 24 March 1998, the applicant again wrote directly to me with a copy to the Australian Government Solicitor.  His letter acknowledged that a directions hearing had been arranged for 26 March 1998, and continued as follows:

“However, I have still not been able to find legal assistance, or legal representative up to now, mainly because of financial hardship. 

I sincerely hope the Court could kindly suspend my case for the time being.  I promise to give the Court clear answer within the next two months (my families in China are collecting money for me right now. The money will transfer to me shortly).”

On 26 March 1998, the scheduled directions hearing took place.  Once again no appearance was made on behalf of the applicant.  On this occasion I granted leave to the respondent to file a notice of motion, returnable on 22 April 1998 at 9.30 am for hearing.  I noted that the notice of motion would seek dismissal of the proceedings. 

As I have already said, on 3 April 1998 the respondent filed the application seeking an order dismissing the proceedings.  That application was supported by the affidavit of Mr Pearson. The notice of motion and the affidavit were served at the applicant's address for service on 15 April 1998.  I should add that the material served on the applicant included a letter dated 15 April 1998 from the Australian Government Solicitor.  That letter referred to the notice of motion and affidavit and continued as follows:

“On 22 April 1998 the Respondent will request the Court to dismiss your application for want of prosecution and that you pay the Respondent's costs.  The principal reason for this request is your failure to attend any of the directions hearings in the matter.  If you wish to oppose the Notice of Motion, you or your representative should attend the hearing of the notice of motion on 22 April 1998 at 9.30 am.”

A number of conclusions can be drawn from this account.  First, the applicant has failed to appear at any of the directions hearings.  He has failed to do so notwithstanding letters specifically informing him that he should do so.  In the case of the hearing scheduled for today, service has been effected in accordance with the Federal Court Rules of a notice of motion and supporting affidavit seeking orders dismissing the proceedings.  In addition, the applicant was served with a letter that set out the position plainly.  Clearly he has chosen not to attend.

Secondly, the appropriate inference from the evidence is that the applicant has received the documents that have been sent to his address for service.  Notwithstanding that that address is a private box, it is clear that the applicant received material left for him, since he sent letters to the Court responding to that material.

Thirdly, although the applicant has given in correspondence as his reason for non-attendance his inability to obtain a legal practitioner, that does not explain why he has failed to attend in person any of the hearings, including the hearing scheduled for today.  There is nothing in the material before the Court that suggests that the applicant is unable to understand the material that has been served upon him.  On the contrary, the letters that he has sent to the Court are in English and are expressed clearly.

In these circumstances, I think that the repeated failure of the applicant to make any appearance in the Court demonstrates an unwillingness to take reasonable steps to pursue the application he has filed.  I accept that, generally speaking, people who are unable to obtain legal representation experience difficulties in pursuing proceedings they have instituted.  That difficulty is not uncommon in migration proceedings, although it must be said that the applicant has not put forward any affidavit evidence or other material particularising the difficulties he may have experienced.  In any event, any difficulty the applicant may have encountered in obtaining legal representation does not explain his failure to attend Court at any stage since the filing of the application.

I do not think that what is asserted in the letters provides a sufficient explanation to warrant the proceedings continuing beyond today.  The position appears to be that the applicant is simply not prepared to appear in Court himself, notwithstanding that he has now had four separate opportunities to do so.

I think the appropriate order is to dismiss the application and to order the applicant to pay the respondent's costs of the proceedings.   I make those orders.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             22 April 1998

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 April, 1998
Date of Judgment:	22 April, 1998