Hossain v Minister for Immigration and Multicultural Affairs

[1999] FCA 1675

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [1999] FCA 1675

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)

ANOWAR HOSSAIN AKA RABINDRA SEN V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 848 OF 1999

JUDGE:         SACKVILLE J
DATE:           30 NOVEMBER 1999

PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 848 OF 1999
BETWEEN:	ANOWAR HOSSAIN aka RABINDRA SEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	30 NOVEMBER 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 848 OF 1999

BETWEEN:	ANOWAR HOSSAIN aka RABINDRA SEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J
DATE:	30 NOVEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of an application for review of a decision of the Refugee Review Tribunal (“RRT”).  The decision of the RRT was made on 3 August 1999, and affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant the applicant a protection visa.

2. There has been no appearance today on behalf of the applicant, who is a citizen of Bangladesh.  Mr Reilly, who appears on behalf of the Minister, has sought an order pursuant to Federal Court Rules, O 32, r 2(1)(c), dismissing the application.  This sub-rule permits the Court, when a proceeding is called on for trial and any party is absent, to make an order dismissing the action, should the absent party be the applicant.

3. The history of this matter so far as the Court is concerned is as follows.  The applicant filed an application in the Court on 27 August 1999.  The applicant sought an order of review of the decision of the RRT.  The grounds stated in the application do not specify in any detail, or with any clarity, the basis upon which it is said that the RRT made a reviewable error.

4. The first and only directions hearing took place on 21 October 1999.  On that date, the applicant did not appear.  I made orders, however, for the filing of affidavits and written submissions and setting the matter down for hearing today, 30 November 1999, at 10.15 am.

5. Mr Reilly has tendered a letter sent by Ms Warner of the Australian Government Solicitor on 21 October 1999, to the applicant's address for service.  That letter specifies the orders made by me on that date.  The letter also encloses a copy of the orders translated into the Bengali language.  The letter specifically states that it is important that the applicant attend the Court for hearing at 10.15 am on 30 November 1999, and warns that if there is no appearance, the Minister will seek an order that the application be dismissed on the ground of the applicant's non-appearance.

6. There is also evidence that on 24 November 1999, a further letter was sent by Ms Warner to the applicant at his address for service.  This letter was sent both by courier and by express post.  The letter encloses by way of service, a copy of the Minister's submissions.  It also repeats the warning given earlier that, in the absence of appearance by the applicant, an order would be sought seeking dismissal of the application on the ground of the applicant's non-attendance.

7. I should add that no submissions or any other documents have been filed on behalf of the applicant in these proceedings, other than the application itself.

8. The RRT reached its decision primarily upon the basis that it did not accept that the applicant was a credible witness, and found that he had fabricated his claims and evidence in order to advance his application for a protection visa.

9. In the circumstances I have outlined, I consider it appropriate to order that the application be dismissed.  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:             30 November 1999

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 November 1999
Date of Judgment:	30 November 1999