Nadu of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1004

FEDERAL COURT OF AUSTRALIA

NADU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1004

APPLICANT NADU OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 584 of 2002

STONE J
9 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 584 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT NADU of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	9 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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 584 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT NADU of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	9 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate given on 30 May 2002 dismissing an application for review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 7 February 2002.  The Tribunal had affirmed the decision of a delegate of the respondent to refuse to grant the appellant a protection visa.  On 9 August 2002, I dismissed the appeal with costs pursuant to O 52 r 38A of the Federal Court Rules.  These are the reasons for those orders.

2. At first instance, this matter was transferred from this Court to the Federal Magistrates Court pursuant to O 82 r 6(1). When the application came on for hearing before the Federal Magistrate on 30 May 2002 it was dismissed with costs due to the failure of the appellant to appear at the hearing. Despite r 16.05(2) of the Federal Magistrates Court Rules, which gives a Federal Magistrate the discretion to set aside an order which has been made in the absence of a party, the appellant appealed directly to this Court. The grounds of appeal set out in the notice of appeal, filed on 20 June 2002, do not relate to the judgment of the Federal Magistrate, but appear to assert errors made by the Tribunal.

3. The appeal was set down for 9 August 2002 pursuant to directions made on 19 July 2002.  The appellant did not appear at those directions.  The appellant subsequently appeared at the settling of the index papers for the appeal on 25 July 2002.  According to an undated facsimile from the appellant, received by the Registry on 31 July 2002, the appellant was informed of the 9 August 2002 hearing date when he attended the Court on this date.  In the facsimile the appellant asked that the hearing of the appeal be delayed for two months.

4. On 8 August 2002, a day prior to the scheduled hearing, the respondent’s solicitors provided my associate with a copy of an unsealed notice of discontinuance, which appears to have been signed by the appellant and dated 7 August 2002. The respondent’s solicitors appear to have received the notice of discontinuance on 7 August.  It does not appear that a copy of the notice of discontinuance was provided to the Court.  An attempt by my associate to contact the appellant in respect of the notice of discontinuance was unsuccessful.

5. The appellant did not appear when the matter was called at the time appointed for the hearing.  No message was received from the appellant explaining his failure to appear.  I am satisfied that the appellant has been on notice of the hearing and was given a proper opportunity to appear.

6. For these reasons I acceded to the respondent’s request that the appeal be dismissed with costs under O 52 r 38A.  I note that the appellant could, if he wished, move to have these orders set aside under O 52 r 38A(2).

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             10 August 2002

Counsel for the Appellant:	No appearance
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2002
Date of Judgment:	9 August 2002