Chen v Minister for Immigration and Multicultural Affairs

[1999] FCA 959

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 959

MIGRATION - application for review of decision of Refugee Review Tribunal refusing protection visa - dismissal of proceedings under Federal Court Rules, O 32, r 2(1)(c), on the basis that the applicant has not appeared

Migration Act 1958 (Cth), s 476(1)

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

JIAN KAI CHEN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 167 OF 1999

JUDGE:  SACKVILLE J
PLACE:  SYDNEY
DATE:  28 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 167 OF 1999

BETWEEN:	JIAN KAI CHEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	28 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the proceedings.

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	N 167 OF 1999

BETWEEN:	JIAN KAI CHEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J
DATE:	28 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China, born on 30 November 1968. He has applied pursuant to section 476(1) of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Refugee Review Tribunal (“RRT”) made on 12 February 1999.  The RRT affirmed a decision made by a delegate of the Minister on 30 June 1998 to refuse to grant the applicant a protection visa.

2. The matter has been called for hearing today.  The applicant has not appeared.  The matter was listed for hearing at a directions hearing held on 9 April 1999.  The applicant was present at that directions hearing and was therefore aware of the date upon which the hearing was to take place.  In addition, Mr Markus, who appears on behalf of the Minister, has tendered a letter dated 24 June 1999.  In that letter, the Australian Government Solicitor forwarded to the applicant a copy of the respondent's outline of submissions.  The letter also advised the applicant that the proceedings had been listed for hearing today, 28 June 1999.  Of course, as I have already mentioned, the applicant was aware of the scheduled hearing date by reason of his attendance at the directions hearing on 9 April 1999.

3. In these circumstances, Mr Markus applies, pursuant to Federal Court Rules, O 32, r 2(1)(c) to have the proceedings dismissed.  This sub-rule permits the Court to dismiss the action if the applicant does not appear at the hearing.  In my opinion, this is an appropriate case for such an order to be made.  I should indicate that I have read the application for an order of review, the RRT’s decision and the Minister's submissions. 

4. Although I have not had the benefit of an appearance by the applicant, there is nothing in the material before the Court to suggest that the RRT’s decision was infected by an error of law.  That decision was based upon findings of fact which are set out in the RRT’s reasons for decision.

5. In the circumstances, I order that the application be dismissed.  I also order that the applicant pay the Minister's costs of the proceedings.

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

Associate:

Dated:             28 June 1999

Counsel for the Applicant:	None
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 June 1999
Date of Judgment:	28 June 1999