Jin, Sheng Fu v Minister for Immigration & Multicultural Affairs

[1996] FCA 1185

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No. NG 404 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:SHENG FU JIN

Applicant

AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE MAKING ORDERS:    FOSTER J

DATE:     19 DECEMBER 1996

PLACE:    SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.The appeal be dismissed for want of prosecution.

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  )    No. NG 404 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:SHENG FU JIN

Applicant

AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM:    FOSTER J

DATE:     19 DECEMBER 1996

PLACE:    SYDNEY

REASONS FOR JUDGMENT
  (Extempore)

HIS HONOUR:    This matter came before me this morning, it having been specially fixed for hearing today, as a result of its having first come before me on 6 December.  On that occasion there was no appearance of the applicant and I specially fixed the matter for hearing today.  This was on the basis of material being placed before me on that occasion which suggested fairly strongly that the applicant was seeking to avoid the matter coming on for hearing. 

The matter was called on for hearing this morning at 10.15.  The applicant did not appear.  This non-appearance was in circumstances which I then had noted on the transcript.  The applicant had made some representations by phone call to my judicial chambers the afternoon before.  It appears from what I was told by Ms Hartstein, counsel for the respondent, that similar information had been provided to the respondent.  The information was to the effect that the applicant was unwell and therefore could not appear.  The information was also to the effect that he was too busy to appear. 

In response from my chambers and also from the respondent he was told that it would be necessary for there to be an appearance before the Court this morning and an appropriate application made for an adjournment if the matter was not to proceed.

As the applicant did not appear this morning I deemed it necessary that one further attempt be made to acquaint him with the fact that this matter would proceed in his absence if he did not appear.  As a result of the directions I gave this morning relevant messages have been left for him at telephone numbers and also a letter served upon him indicating that the matter would proceed in his absence if he did not appear before the Court at 2.30 this afternoon.  He has not so appeared. 

I have had placed before me this afternoon material indicating what could only be described as a marked reluctance to appear before the Refugee Review Tribunal ("the Tribunal") and have his case disposed of.  These circumstances and the material placed before me satisfy me that he has been avoiding appearing and prosecuting this appeal before this Court.

In my view, despite his absence, this appeal should proceed this afternoon, the time now being 2.45 pm.

In my view, for reasons that I have already given, I think that this appeal is one appropriate to be dismissed for want of prosecution.  I am fortified in that view by my having considered the transcript of the hearing before the Tribunal and also the Tribunal's reasons.  I have also had regard to the very limited grounds for appeal now available in relation to appeals from the Tribunal.

Furthermore, in my view, it is proper to characterise this appeal as one that had no prospect of success so far as that appears from the material placed before the Court.  In any event, as I have already indicated, the applicant has not seen fit to present himself before the Court to prosecute this appeal and I think it is sufficient in all the circumstances if I merely dismiss this appeal for want of prosecution.

I think it is appropriate the applicant be ordered to pay the respondent's costs.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate:

Date:   19 DECEMBER 1996

A P P E A R A N C E S

FOR THE APPLICANT:  NO APPEARANCE

FOR THE RESPONDENT: MS V. HARTSTEIN

INSTRUCTED BY:     AUSTRALIAN GOVERNMENT SOLICITOR

DATE OF HEARING:    19 DECEMBER 1996

DATE OF JUDGMENT:   19 DECEMBER 1996