NBJU v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1734

FEDERAL COURT OF AUSTRALIA

NBJU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1734

NBJU AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1824 of 2004

JACOBSON J
22 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1824 of 2004

BETWEEN:

NBJU
FIRST APPLICANT

NBJV
SECOND APPLICANT

NBJW
THIRD APPLICANT

NBJX
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

22 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules as there was no appearance by the applicant.

2.The respondent notify the applicants of this order and the provisions of Order 35, rule 7 of the Federal Court Rules within 7 days.

3.The first applicant 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 1824 of  2004

BETWEEN:

NBJU
FIRST APPLICANT

NBJV
SECOND APPLICANT

NBJW
THIRD APPLICANT

NBJX
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	JACOBSON J
DATE:	22 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respondent applies today for an order that the application in this matter be dismissed pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, by reason of the failure of the applicant to appear at two directions hearings. 

2. The application was filed on 8 December 2004 and seeks review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal handed down on 14 March 2001.

3. The respondent has filed an affidavit of Ms Catherine Jane Gray sworn 21 December 2004.  The affidavit discloses that the applicant failed to appear at the first directions hearing which was listed for 15 December 2004.  After the directions hearing the respondent's solicitors wrote to the applicant stating that the matter had been listed for a further directions hearing on 22 December 2004 at 11.00 am before a Registrar of the court.  The applicant failed to appear at today's directions hearing and the matter was referred to me.

4. Order 35A rule 2(1)(b) provides that for the purposes of order 35A, an applicant is in default if he or she fails to attend a directions hearing.  I am satisfied that that has occurred on two occasions.  Accordingly the applicant is default under order 35A rule 3(1) and I have power to dismiss the proceeding under that rule.  It seems to me to be appropriate to exercise the power and accordingly I make orders in accordance with the short minutes of order which have been handed to me and I will sign and date the draft order with today's date.

I certify that the preceding 4 (four) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:            23 December 2004

Counsel for the Applicant:	There was no appearance for the Applicant
Counsel for the Respondent:	Ms Gray
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 December 2004
Date of Judgment:	22 December 2004