Luafongfoo v Minister for Immigration and Multicultural Affairs

[2001] FCA 1422

FEDERAL COURT OF AUSTRALIA

Luafongfoo v Minister for Immigration & Multicultural Affairs [2001] FCA 1422

PHANNITA LUAFONGFOO v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 437 OF 2001

TAMBERLIN J
SYDNEY
3 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 437 OF 2001

BETWEEN:	PHANNITA LUAFONGFOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	3 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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 437 OF 2001

BETWEEN:	PHANNITA LUAFONGFOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	3 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, the applicant seeks review of a decision of the Refugee Review Tribunal (“the RRT”) but did not appear when the matter was called for hearing today.  The date was fixed at a directions hearing in this Court on 8 June 2001.  Among the orders which the Court made on that day were orders that the applicant file and serve any evidence on which she proposed to rely on or before 22 June 2001 and that the applicant file and serve an outline of submissions on or before five working days prior to the hearing date. 

2. The hearing date was fixed in the orders as 3 October 2001 at 10.15am.  The first two orders to which I have referred have not been complied with and the respondent seeks dismissal of the proceedings.  I should note that there is affidavit evidence before me to the effect that the submissions of the respondent were couriered to the last known address for service of the applicant on 2 October 2001 and that there was a covering letter dated 28 September 2001 noting that the hearing of the appeal was 3 October 2001 at 10.15am. 

3. In addition, a letter was sent by the Court to the applicant at her last known address, on 12 September 2001, again notifying the applicant that the matter was listed for hearing today at 10.15am and it was noted in that letter that the parties were directed to provide a list of authorities together with an indexed folder by 4.00pm on Monday 1 October 2001. 

4. In view of the fact that the applicant has not pursued these proceedings, I am prepared to dismiss the application for review on the basis of non appearance pursuant to O 32 r 2(1)(c) which gives the Court power to dismiss the action if the party absent is an applicant.  I note the provisions of O 35 r 7 which empower in certain circumstances the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default.

5. I have also considered the decision of the RRT and the submissions which have been made in relation to that decision on behalf of the respondent and I am of the opinion that no judicially reviewable error has been disclosed in the findings, reasons and decision of the RRT in this matter.  Accordingly, I dismiss the application and it follows that costs should be paid by the applicant in this matter.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             11 October 2001

Counsel for the Respondent:	A McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 October 2001
Date of Judgment:	3 October 2001