Kvackovski v Minister for Immigration & Multicultural Affairs

[1999] FCA 1015

FEDERAL COURT OF AUSTRALIA

Kvackovski v Minister for Immigration & Multicultural Affairs [1999] FCA 1015

MIGRATION - application for review of decision of Refugee Review Tribunal refusing protection visa - 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)

SANDE KVACKOVSKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 258 OF 1999

JUDGE:  SACKVILLE J
PLACE:  SYDNEY

DATE:  22 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 258 OF 1999

BETWEEN:	SANDE KVACKOVSKI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	22 JULY 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 258 OF 1999

BETWEEN:	SANDE KVACKOVSKI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J
DATE:	22 JULY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for an order of review of a decision made by the Refugee Review Tribunal (“RRT”) on 8 March 1999.  The RRT on that date affirmed a decision not to grant a protection visa to the applicant.  The applicant is a citizen of the former Yugoslavian republic of Macedonia, who arrived in Australia on 26 July 1997.  He lodged an application for a protection visa on 30 September 1997 with the Department of Immigration and Multicultural Affairs.  A delegate of the Minister refused to grant a protection visa on 20 October 1997.

2. The applicant in his application for review to the RRT identified his language as Macedonian.  That application was completed in the English language, although it is not clear whether the applicant had any assistance in the filling out of the application for review; nor is it clear whether, at the hearing before the RRT, the applicant had the assistance of an interpreter. 

3. When the matter was called on for hearing today, the applicant did not appear.  In these circumstances, Mr Godwin, who appears for the respondent, applied pursuant to Federal Court Rules, O 32, r 2(1)(c), for an order dismissing the action by reason of the absence of the applicant.

4. The procedural history of this matter is as follows.  The applicant filed a handwritten application for an order of review on 1 April 1999.  As might be expected with an unrepresented applicant, the application does not identify with any precision the basis of the application to review the decision of the RRT.  The application came on for a directions hearing on 13 May 1999.  On that date, the applicant appeared and was assisted by a Macedonian interpreter.  Orders were made for the matter to be listed for hearing on 11 August 1999.  Other directions were made so as to ensure that the proceedings were ready for hearing on that date.

5. Subsequently, for reasons connected with the listings before the Court, it was considered desirable to change the hearing date.  On 29 June 1999, a letter was sent to the applicant at his address for service.  That letter advised him that the Court wished to bring the hearing forward to a day during the last two weeks of July 1999.  That letter was accompanied by a translation, but in the Russian language, not in the Macedonian language.

6. According to a record of a conversation between a person identifying herself as the applicant’s sister-in-law and my associate, I was advised that the applicant would be able to attend the Court on 22 July, that is today, for a hearing.  The sister-in-law advised that she was responding on the applicant's behalf because he was unable to speak English.

7. Following this conversation, a letter was sent on 9 July 1999 to the applicant confirming that the matter was listed for hearing on 22 July 1999.  That letter was sent in English.  However, on 12 July 1999, a further letter was sent which included translations of the letter sent on 9 July 1999.  The translations were both in Macedonian and Russian.  The letter of 9 July 1999, which was of course subsequently translated into Macedonian, made directions for the conduct of the hearing on 22 July 1999.

8. On 21 July 1999 a person identifying himself as a friend of the applicant telephoned my associate to advise that the applicant would not be attending the hearing the following day.  My associate advised the caller to contact the Australian Government Solicitor and provided a number.

9. A file note from the Australian Government Solicitor's office indicates that a telephone call was made on 21 July 1999 by a person identifying himself as a friend of the applicant.  Presumably this person was the same person who had spoken to my associate.  That person advised that the applicant did not have any money for the hearing.  This was presumably intended to convey that the applicant, being unable to afford legal representation, did not propose to appear at the hearing.  According to the file note, the solicitor advised the friend to inform the applicant that he should attend at Court the following day, and also advised him of the consequences of pulling out.

10. The end result of this chain of events is that I am satisfied that the applicant was aware that the hearing had been changed from the original date until today's date.  The applicant has chosen not to appear.  In these circumstances, I think the appropriate course is to make the order pursuant to Federal Court Rules, O 32, r 2(1)(c).

11. Accordingly, I dismiss the application.  I should add that, although it is always difficult to make final judgments about a decision of the RRT without the benefit of argument, it is not obvious from a reading of the RRT decision and the application that has been filed, what ground of review might be made out.  In any event, in the absence of the applicant, the appropriate order is, as I have indicated, that the proceedings be dismissed.  I order that the applicant pay the respondent’s costs of the proceedings.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             22 July 1999

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 July 1999
Date of Judgment:	22 July 1999