M227 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 329

FEDERAL COURT OF AUSTRALIA

M227 v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 329

PRACTICE & PROCEDURE – where failure of applicant to attend hearing – prior advice from applicant seeking discontinuance - application for dismissal - dismissal for non-attendance

Federal Court Rules O 32 r 2(1)(c), O 35 r 7

M227 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 215 OF 2003

CRENNAN J
MELBOURNE 
24 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 215 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

M227 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

CRENNAN J

DATE OF ORDER:

24 MARCH 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant is to pay the respondents’ costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 215 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

M227 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	CRENNAN J
DATE:	24 MARCH 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This matter, in which the applicant seeks prerogative relief, has been remitted to this court from the High Court.  The matter was fixed for hearing today.  The applicant did not appear when the matter was called on for hearing.  A letter dated 6 February 2004 from the applicant to his pro bono counsel, Mr Champion, records:

   “I wish to notify all parties concerned that after considerable thought I have finally decided to call off my case and depart Australia.” 

2. This matter has a long history, having first been the subject of a decision in this court by Marshall J on 5 April 2002.  That decision was then the subject of an unsuccessful appeal in which judgment was given by the Full Court on 20 November 2002. 

3. Given the history of the matter and the letter of 6 February 2004 and the fact that the applicant was not present today when the matter was called on for hearing, I am disposed to make an order to dismiss the application pursuant to O 32 r 2(1)(c) of the Federal Court Rules which gives the court power to dismiss the action if the party absent is an applicant.  I note in that context the provisions of O 35 r 7 which empower 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 of otherwise in default.  It seems to me that O 35 r 7 meets the concerns, quite properly put, on behalf of the applicant by his pro bono counsel, Mr Champion.  Accordingly, the application is dismissed with an order that the applicant is to pay the respondents’ costs. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Associate:

Dated:            30 March 2004

Solicitor for the Applicant:	M Champion (pro bono)
Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 March 2004
Date of Judgment:	24 March 2004