Hyan Tae An v Minister for Immigration and Multicultural Affairs

[1998] FCA 1402

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 647 of 1998

BETWEEN:	HYAN TAE AN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J.
DATE:	30 OCTOBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   In this matter Ms Dejean, on behalf of the respondent Minister applies pursuant to Federal Court Rules O 10 r 3 for an order dismissing the application.  Order 10 r 3 subrule (2) provides that:

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 history of this matter appears to be as follows.  On 30 June 1998, the applicant filed a handwritten application for an order of review of a decision of the Refugee Review Tribunal (“RRT”) given on 1 June 1998.  In that decision the RRT affirmed a decision of the Minister's delegate not to grant a protection visa to the applicant or to certain other persons named as applicants in the proceedings before the RRT.

Although handwritten, the application for an order of review was filed on the applicant's behalf by a firm of solicitors, Tim Young & Associates.  It should be noted that the application for review does not provide any detailed statement of the grounds upon which it was sought to set aside the decision of the RRT.  On 9 October 1998, Tim Young & Associates filed a notice of ceasing to act on behalf of the applicant.  On the previous day, Mr Young filed an affidavit in the Court which explained the circumstances in which he came to cease to act on behalf of the applicant.  That affidavit, which has been tendered by Ms Dejean on the present application, annexes to correspondence between Mr Young and his then client.  The attached letters include the address of the applicant.

Prior to Mr Young ceasing to act, a directions hearing had been held on 1 October 1998.  There was no appearance on behalf of the applicant at that directions hearing.  The affidavit from Mr Young was filed pursuant to a direction made on 1 October 1998 that he file an affidavit in compliance with the Federal Court Rules.  This explains why Mr Young did indeed file an affidavit in the manner I have explained.

On 1 October 1998, directions were made for the conduct of the hearing, and a further directions hearing was set down for 30 October 1998.  Following the directions hearing of 1 October 1998, the Australian Government Solicitor sent a letter to the applicant at an address that corresponds to that appearing in Mr Young's affidavit.  The letter was sent on 9 October 1998.  It advised the applicant that the matter had been listed for further directions at 9.30 am on 30 October 1998.  It also stated that if the applicant did not appear at the next directions hearing the Court might make orders in his absence, including orders that the application be dismissed with costs.

Ms Dejean has also tendered a handwritten letter which appears to be from the applicant, dated 8 October 1998.  That letter states as follows:

I refer to the above appeal.  I wish to advise I am discontinuing this appeal.  I have advised the Court.

The signature on this letter appears to match the signature on a statutory declaration which forms part of the bundle of documents prepared by the Minister for the conduct of the hearing.  That bundle was also in evidence for the purposes of the present application. 

In these circumstances it would seem a reasonable inference that the applicant has determined not to proceed with his application for review, notwithstanding that no formal notice of discontinuance or consent orders have been filed.  I therefore consider it appropriate to make the orders sought on behalf of the Minister.  The orders are that the application be dismissed.  The decision of the Refugee Review Tribunal made on 1 June 1998 be affirmed.  The applicant pay the Minister's costs. 

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             30 October 1998

Solicitor for the Respondent:	Ms H Dejean, Australian Government Solicitor
Date of Hearing:	30 October, 1998
Date of Judgment:	30 October, 1998