NAHO v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 227

FEDERAL COURT OF AUSTRALIA

NAHO v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 227

NAHO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1692 OF 2003

BENNETT J
17 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1692 OF 2003

BETWEEN:	NAHO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	17 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   Pursuant to Order 52 Rule 38A, the appeal is dismissed.

2.   The appellant 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
NEW SOUTH WALES DISTRICT REGISTRY	N1692 OF 2003

BETWEEN:	NAHO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	17 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, on 12 December 2002, the Refugee Review Tribunal (‘the Tribunal’) handed down a decision made on 18 November 2002, affirming a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs’ (‘the Delegate’) decision not to grant a protection visa to the appellant. The appellant applied to the Federal Magistrates Court for review of the decision of the Tribunal. The Federal Magistrate found no legal error and dismissed the proceedings. The appellant appealed to this Court and pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice determined that the matter be heard by a single judge.

2. When the appeal was originally called on for directions before me, on 20 November 2003, the appellant was not present.  The solicitor for the respondent made an application on that occasion to have the appeal dismissed.  I declined to do so and was in the process of making further directions when the appellant appeared.  Directions were then made in the appeal and the matter set down in her presence.  To my recollection the appellant was asked if the date for the hearing of the appeal was suitable to her and she indicated that it was.  She was on that occasion assisted by an interpreter.

3. Since that time a letter was sent by the Court to the appellant on 6 February 2004 confirming the listing of the matter for today and informing the appellant that the matter was being heard by a single judge.  On 12 February 2004, the solicitor for the respondent forwarded to the appellant the respondent's submissions in this matter.  Both the covering letter and the submissions themselves bore the date for hearing and thereby the appellant was repeatedly informed that the matter was listed for today.  That letter and enclosed submissions were sent to the appellant's address for service as stated both in her original application and on the notice of appeal.

4. When the matter came on for hearing this morning the appellant was called outside the Court at about 10.25 am.  The interpreter was present.  I was informed that the solicitor for the respondent had made two attempts to contact the appellant on the mobile phone number that he had for the appellant but that that number was engaged.  I adjourned the matter until 11 o'clock in order to give the appellant time in case she was delayed by a matter such as public transport.  When I resumed the hearing, the appellant was still not present.  The matter was called again outside the Court and there was no appearance.  The solicitor for the respondent attempted again to contact the appellant on her mobile phone and on that occasion the number did ring but the phone was unanswered.

5. The respondent applies under Order 52 Rule 38A to have the proceedings dismissed on the basis that the appellant is absent.  In the circumstances and bearing in mind that under Order 52 Rule 38A(2) the appellant may apply to set aside or vary the order, I propose to accede to that application.  Accordingly, pursuant to Order 52 Rule 38A the appeal is dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             12 March 2004

No appearance from the Appellant
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	17 February 2004
Date of Judgment:	17 February 2004