Kassem, Ali v Minister for Immigration & Multicultural Affairs

[1997] FCA 217

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No. NG 974 of 1995
)
GENERAL DIVISION	)

BETWEEN:		ALI KASSEM Applicant
AND:		MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
CORAM:	EMMETT J
PLACE:	SYDNEY
DATED:	12 FEBRUARY 1997

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   These proceedings are brought under section 476 of the Migration Act for review of a decision of the Refugee Review Tribunal given on 22 November 1995.  When the matter was called for hearing this morning, there was no appearance for the applicant.  Ms Wilkins who appeared for the respondent read the affidavits of Stephanie Mancell sworn 10 February 1997 and 12 February 1997.  That evidence indicates, as does a note on the court file which was marked as exhibit 1, that the applicant appears to have vacated the address shown in the application as the address for service of process. The evidence also shows that an individual of the same name as the applicant, and having the same birthday as the applicant, departed Australia from Kingsford Smith airport on 21 December 1996.

The evidence also indicates that it is highly unlikely that that individual has returned to Australia.  In the circumstances, the non appearance of the applicant this morning appears to be explained by the fact that he is no longer in Australia and, on that basis, counsel for the respondent asked that the matter be dismissed, there being no evidence led in support of the application and no contentions advanced in support of the application. 

One would be slow to dismiss an application in circumstances where the applicant has not been heard and, indeed, in circumstances where the applicant may not have been aware that the matter has actually been fixed for hearing.  However, it seems to me that reasonable steps have been taken to ensure that the applicant would have been aware of the fixture had he made arrangements for forwarding of correspondence from the address shown for service in his application.

I am also mindful of the provisions of order 35 rule 7(2)(a) which authorises the court to set aside an order where the order has been made in the absence of a party whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order.

In the circumstances, it seems to me that little is to be gained by incurring further costs in endeavouring to notify the applicant in circumstances where he appears to have left the country and on that basis it is appropriate that the application be dismissed.  The Minister also asks for an order for the costs of the application and I propose to make such an order but I also propose to order that the respondent forward a communication addressed to the applicant at the address shown in the application and also to any other address shown in the record as a place at which the applicant has resided or had received communications in the past. 

The written communication should inform the applicant that the matter had been fixed for hearing on 12 February 1997, that in the absence of any appearance from the applicant the proceedings had been dismissed with an order for costs.  The communication should also clearly draw attention to the provisions of order 35, rule 7(2)(b) in such a way as would inform the applicant of the court's power to revoke the order which I propose to make.

I direct that the exhibit may be returned and be returned to the file.

I certify that this and the preceding two pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett

Associate:

Dated: 12 February 1997

Heard:         12 February, 1997

Place:         Sydney

Decision:      12 February, 1997

Appearances:    There was no appearance for the applicant.

Miss E. Wilkins appeared, instructed by the                    Australian Government Solicitor, for the   respondent.