Muangnoi, Phacharee v Minister for Immigration and Ethnic Affairs

[1998] FCA 904

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 397 of 1998

BETWEEN:	PHACHAREE MUANGNOI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J.
DATE:	28 JULY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   In this matter, the respondent, to whom I shall refer as the Minister, proceeds by way of a notice of motion filed on 20 July 1998 seeking an order that the application be dismissed and that the applicant pay the respondent's costs of the proceedings.  The application is brought pursuant to Federal Court Rules, O 10 r 3(2) which provides as follows:

“3(2)If no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper.

The history of this matter insofar as is relevant, is as follows.  On 17 April 1998 the Refugee Review Tribunal made a decision affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant.  The Tribunal's reasons reveal that it wrote to the applicant at the address for service given in her application for review, advising that it had considered all the papers relating to the application but that it was unable to make a favourable decision on that information alone.

The applicant was invited to give oral evidence before the Tribunal.  The applicant was also advised that if she did not contact the Tribunal within a specified period, the hearing would not take place and a decision would be made on the evidence available to the Tribunal.  The applicant did not attend the Tribunal hearing scheduled for 17 April 1998.  The Tribunal proceeded then to deal with the applicant's application for review and made the determination to which I have already referred.

The applicant sought an order reviewing the decision of the Refugee Review Tribunal in this Court. Her application was filed on 30 April 1998. The application states that the applicant's address for service is 119 John Street, Cabramatta NSW 2166. The application provides no details of the grounds upon which the applicant seeks review of the Tribunal's decision. In substance, it merely asserts that the applicant is a person to whom s 36(2) of the Migration Act 1958 (Cth) applies, in that she is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees.

The matter came first before this Court on 29 May 1998, when it was listed for a directions hearing before another Judge.  There was no appearance by the applicant at the directions hearing.  The Judge ordered that the matter be stood over for further directions on 18 June 1998. 

On 2 June 1998, the solicitor for the Minister wrote to the applicant at her address for service, informing her that the matter had been stood over for directions on 18 June 1998.  The letter advised that the applicant should attend in person if she did not have a legal representative.  She was informed that, if no appearance was made, the Court might entertain an application by the Minister that her application be dismissed with costs.

On 5 June 1998, the solicitor received a telephone call from a person who identified himself as a friend of the applicant.  In that conversation, the solicitor informed the friend that the matter was listed on 18 June 1998.  The friend also indicated in the conversation that the letter of 2 June 1998 had been received. 

The matter was again before the Court on 18 June 1998 as scheduled.  Again, there was no appearance on behalf of the applicant on that occasion.  The Minister made no application for the matter to be dismissed.

However, the Minister subsequently caused to be served on the applicant the notice of motion seeking dismissal of the proceedings and the affidavit in support thereof.  That service took place, according to the evidence of the process server, on 21 July 1998 at the applicant's address for service, namely, 119 John Street, Cabramatta. 

In these circumstances, it seems to me that the applicant has clearly demonstrated that she is not willing to take the steps required in order to pursue her application for review of the Tribunal's decision.  This is the third occasion upon which she has failed to appear in this Court.  Her non-appearance today is despite the fact that she was served with a notice of motion and an affidavit in support indicating that the Minister would seek to have the proceedings dismissed if she did not appear. 

Since there  has been no appearance and no explanation for her failure to appear, the appropriate course in my view is for the proceedings to be dismissed.  Accordingly, I make the following orders:

1. The application be dismissed.

1. The decision of the Refugee Review Tribunal made on 17 April 1998 be confirmed.

1. The applicant pay the respondent's costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:               28 July 1998

Applicant:	Unrepresented
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 July, 1998
Date of Judgment:	28 July, 1998