Khing Fuck v Minister for Immigration and Multicultural Affairs

[2000] FCA 826

FEDERAL COURT OF AUSTRALIA

Khing Fuck v Minister for Immigration & Multicultural Affairs
[2000] FCA 826

IMMIGRATION – Refugees – Whether applicant had made a valid application for visa – Whether error of law where the Minister refused a visa on an invalid application – Correct approach where applicant does not appear

Federal Court Rules, O 32, r 2; O 35, r 7
Migration Act 1958 (Cth), s.36
Migration Regulations 1994 (Cth), reg 2.04, Sch 2, cl 866.21.

Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560, considered.
Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421, considered.
Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489, considered.
Yilmaz v Minister for Immigration and Multicultural Affairs [1999] FCA 1025, considered.

KHING FUCK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1460 of 1999

SACKVILLE J.
6 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1460 OF 1999

BETWEEN:	KHING FUCK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	6 JUNE 2000
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

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	N 1460 OF 1999

BETWEEN:	KHING FUCK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	6 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by an unrepresented applicant seeking, in substance, an order setting aside a decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 November 1999 and remitting the proceedings to the Tribunal for further consideration. The proceedings were listed for hearing today, 6 June 2000. When the matter was called, there was no appearance for the applicant.

2. In these circumstances, Mr Braham, who appears on behalf of the respondent, seeks an order pursuant to Federal Court Rules O, 32, r. 2(1)(c) dismissing the proceedings having regard to the non-appearance of the applicant. Ordinarily, I would, without hesitation, accede to the application made by the Minister. The applicant was present in court at the last directions hearing held on 3 March 2000 when the proceedings were set down for hearing today. The Minister has tendered evidence that demonstrates that the applicant was given due notice not only of the hearing date, but of the Minister's intention to apply to dismiss the proceedings in the event of the applicant's non-appearance. Moreover, the applicant has failed to comply with directions given for the filing of written submissions.

3. The only doubt I have is this. Mr Braham has very properly drawn to my attention authorities that suggest that, on the facts of this case, the applicant never lodged a valid application for a protection visa. This state of affairs comes about because the application lodged by the applicant with the Department of Immigration and Multicultural Affairs omitted crucial details required by s 36 of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth), reg 2.04, Sch 2, cl 866.21.

4. Two judgments given by single judges of this Court hold that an application that omits such crucial details is not a valid application for the purposes of the Act. In each case, it was held that a decision of the Tribunal, affirming the delegate’s decision to refuse the grant of a protection visa to the “applicant”, should be set aside: Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 (Heerey J) and Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560 (Lindgren J). Both Heerey J and Lindgren J declined to follow Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 (Finn J), which had reached a contrary result.

5. If Kundu and Li Wen Han are correct, the applicant would be entitled to relief from this Court. However, in order to obtain such relief, the applicant would be required to file an amended application raising the issue, since the current application does not refer to it. Mr Braham conceded that, subject to the filing of an amended application, the applicant would be able to succeed if Kundu and Li Wen Han were followed.

6. This is not, however, to say that the law is necessary settled on this point. The Full Court has reserved its decision on an appeal from the decision of Finn J in Yilmaz v Minister for Immigration and Multicultural Affairs [1999] FCA 1025. That appeal involves a challenge to the correctness of Kundu and Li Wen Han.

7. I have given consideration as to whether I should adjourn the proceedings in order to await the Full Court’s decision in Yilmaz. On reflection, I do not think that this is an appropriate course. The applicant has had every opportunity to appear today and put his case to the Court.  If he had appeared, consideration could have been given to amending the application and the issues to which I have referred would subsequently have been raised.

8. But the fact is that the applicant has chosen not to appear and no explanation has been given for his non-appearance. In these circumstances, I do not think the case should be adjourned in order to provide the applicant with an opportunity to amend the application. I have also borne in mind that, under the Federal Court Rules, if proceedings are dismissed by reason of the absence of the applicant, an application may be made to set aside the judgment obtained in default of appearance: see FCR O, 35, r 7(2). Accordingly, I do not think it appropriate to adjourn the proceedings to await the decision of the Full Court in Yilmaz. The consequences that ordinarily flow from the unexplained non-appearance of an applicant at a final scheduled hearing should apply.

9. For these reasons, the proceedings should be dismissed. The applicant should pay the respondent’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:             6 June 2000

The applicant was self represented.

Counsel for the Respondent:	Mr P Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 June 2000
Date of Judgment:	6 June 2000