NAFK v Minister for Immigration and Multicultural Affairs

[2003] FCA 88

FEDERAL COURT OF AUSTRALIA

NAFK v Minister for Immigration & Multicultural Affairs [2003] FCA 88

MIGRATION – application for review of decision of Refugee Review Tribunal – no appearance by applicant at either of two directions hearings – dismissal of application

PRACTICE AND PROCEDURE – where no appearance by applicant – application for dismissal of proceedings pursuant to O 32 r 3(2)

Federal Court Rules O 10 r 2(3), O 35 r 7(2)(a)
Migration Act 1958 (Cth)

NAFK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1313 OF 2002

STONE J
17 FEBRUARY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1313 OF 2002

BETWEEN:	NAFK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	17 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Under O 10 r 3(2) of the Federal Court Rules the application be dismissed. 

2.The respondent inform the applicant in writing as soon as practicable of the provisions of O 35 r 7(2)(a) of the Federal Court Rules.

3.        The applicant is to 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 1313 OF 2002

BETWEEN:	NAFK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	17 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Thailand.  She arrived in Australia on 11 March 2002 and on 10 April 2002 she lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 (Cth).

2. On 4 June 2002 a delegate of the Minister for Immigration & Multicultural Affairs (‘Minister’) refused to grant a protection visa and on 3 July 2002 the applicant applied for a review of that decision.  The review was carried out by the Refugee Review Tribunal which handed down its decision on 24 October 2002.  It is in relation to that decision that this application for review has been made. 

3. There was a directions hearing at 2.15 pm on 15 January 2003.  The applicant made no appearance.  On 4 February 2003 the respondent’s solicitor wrote to the applicant and advised her that the matter was listed for a further directions hearing at 9.30 am on 17 February 2003 and that if she did not attend on this occasion the respondent would seek to have her application dismissed.  The respondent received no response to this letter, which was sent to the applicant’s address for service. 

4. When the matter was called this morning, the applicant did not appear.  The matter was called outside the Court without success. 

5. Under O 10 r 3(2) of the Federal Court Rules, 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 respondent has asked that I exercise the power granted by this Rule and dismiss the application.  In the circumstances described it is appropriate that I do so. 

6. The respondent has stated that its usual practice in these circumstances is to advise the applicant of the dismissal and of their rights under O 35 r 7 of the Rules and has raised no objection to my making an order to this effect.  I also proposed to accede to the respondent’s claim that it be awarded costs in the matter.  

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:             17 February 2003

Solicitor for the Respondent:	Ms B Rayment for Sparke Helmore
Date of Hearing:	17 February 2003
Date of Judgment:	17 February 2003