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

[2002] FCA 758

FEDERAL COURT OF AUSTRALIA

NAGX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 758

NAGX of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 347 of 2002

ALLSOP J
4 JUNE 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 347 of 2002

BETWEEN:	APPLICANT NAGX OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	4 JUNE 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.On or before Wednesday 5 June 2002, the respondent send to the applicant at his address notified on the application, by prepaid post, a letter indicating that:

a)     the matter came before me today;

b)     that there was no attendance by the applicant;

c)     that there has been no attendance by the applicant on any day in which this matter has been listed;

d)     that in the light of this the respondent had applied under Order 10 rule 3(2) of the Federal Court Rules for the dismissal of the application for want of attendance by the applicant before the Court;

e)     that the application referred to in (d) above, made orally to the Court today, has been adjourned to 18 June 2002 at 9.30 am; and

f)      that if the applicant wishes to avoid the matter being dismissed by the Court he should attend without fail on that date and he should be prepared to proffer an explanation to the Court as to his lack of attendance on previous occasions.

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 347 of 2002

BETWEEN:	APPLICANT NAGX OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	4 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, on 26 April 2002 the applicant filed an application in this Court for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 1 March 2002 and handed down on 27 March 2002, which affirmed the decision of a delegate of the respondent Minister not to grant the applicant a protection visa. 

2. The applicant is a national of India. For reasons which will become apparent, it is unnecessary to describe the circumstances of his claim for a protection visa or the circumstances of the decision of the Tribunal.

3. On the same day, 26 April 2002, the applicant filed a brief affidavit, in his hand and in English, complaining about the failure of the Tribunal to award him a protection visa.  The English in which the affidavit and application is written appears to reflect a reasonable familiarity with the English language, a fact the relevance of which will become apparent in a moment.

4. The matter was returnable before the Court, as noted on the application, on 9 May 2002 at 2.15 pm.  On that day Mr Mullins, a solicitor of Blake Dawson Waldron, attended before Deputy Registrar Hedge, although the matter was not listed in the Court list.  The applicant did not appear, nor did anyone appear on his behalf.  Deputy Registrar Hedge amended the application to make it returnable on 16 May 2002, one week hence, and ordered the respondent to notify the applicant of that change.  On 14 May 2002 a letter was posted to the applicant informing him of the matter and its listing before the Court on 16 May 2002.  That letter was sent by post and not by courier.  It may not have reached the applicant on or prior to 16 May 2002.  I should interpolate at this point that on 7 May 2002, there was posted by Blake Dawson Waldron a letter to the applicant enclosing a notice of appearance and inviting him to discuss the case if he thought fit. 

5. On 16 May 2002 the matter was again before Deputy Registrar Hedge.  Mr Cureton, solicitor of Blake Dawson Waldron, appeared on that day for the respondent.  There was no appearance for the applicant.  The matter was stood over to 23 May 2002. 

6. On 20 May 2002, that is the Monday before the Thursday directions hearing on 23 May 2002, Blake Dawson Waldron sent by courier at 5.40 pm a letter to the applicant indicating to him the adjourned hearing date and requesting him to ensure his own appearance on that occasion. 

7. On 23 May 2002 the matter came on once again before Deputy Registrar Hedge at 2.15 pm.  Mr Mullins on this occasion appeared on behalf of the respondent Minister.  There again was no appearance by the applicant.  Mr Mullins, perfectly properly, then requested the matter be re-listed for directions before a Judge.  Deputy Registrar Hedge ordered that the matter be listed before me today at 9.30 am and that the respondent notify the applicant in writing of the directions hearing date. 

8. On 23 May 2002 Mr Mullins caused to be sent to the applicant a letter which not only told him that the matter was on for directions on 4 June 2002 before me, but also informed him that:

   At the following directions hearing we will seek to have the  matter disposed of in your absence pursuant to Order 10 rule 4 of the Federal Court Rules.

9. There is no appearance today by the applicant. I had the applicant called outside the Court three times. He did not appear. I should note that, because of s 91X of the Migration Act 1958 (Cth), that call had to be made by his acronym ‘NAGX’ and not his real name, something which, perhaps, makes the calling of the matter somewhat futile. In any event, he has been given clear notice of today's directions hearing and has not attended.

10. Mr Mullins for the respondent seeks an order under Order 10 rule 3, not Order 10 rule 4, for the dismissal of the proceedings because the applicant has not appeared.  My only hesitation in this regard is that his letter of 23 May 2002 indicates to the applicant that an order for disposal of the matter under a different though related Order would be made at the ‘following’ directions hearing.  This could have been understood by the applicant as a directions hearing after 4 June 2002, that is after today, since the letter did identify that the matter was listed for directions today and that an order might be sought in relation to the disposal at the ‘following’ directions hearing.

11. I am loathe to put the respondent Minister to any further expense in this matter given the history of a complete lack of attendance by the applicant upon the Court in relation to his own application.  However, I am concerned that there is an ambiguity in the letter.  There is absolutely no basis for criticising the Minister for making the application today given the apparent cavalier attitude of the applicant to the conduct of his own case.

12. My orders and directions are as follows:

    1.On or before Wednesday 5 June 2002, the respondent send to the applicant at his address notified on the application, by prepaid post, a letter indicating that:

    a)     the matter came before me today;

    b)     that there was no attendance by the applicant;

    c)     that there has been no attendance by the applicant on any day in which this matter has been listed;

    d)     that in the light of this the respondent had applied under Order 10 rule 3(2) of the Federal Court Rules for the dismissal of the application for want of attendance by the applicant before the Court;

    e)     that the application referred to in (d) above, made orally to the Court today, has been adjourned to 18 June 2002 at 9.30 am; and

    f)      that if the applicant wishes to avoid the matter being dismissed by the Court he should attend without fail on that date and he should be prepared to proffer an explanation to the Court as to his lack of attendance on previous occasions.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop

Associate:

Dated:             12 June 2002

No appearance of the Applicant
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 June 2002
Date of Judgment:	4 June 2002