Pitojo v Minister for Immigration and Multicultural Affairs

[2000] FCA 1529

FEDERAL COURT OF AUSTRALIA

Pitojo v Minister for Immigration & Multicultural Affairs [2000] FCA 1529

Migration – dismissal of proceedings under Federal Court Rules O 32 r 2(1)(c) on the basis that the applicant has not appeared at hearing on two successive occasions.

Federal Court Rules O 32 r 2(1)(c)

Runio v Minister for Immigration and Multicultural Affairs [1999] FCA 64 applied.

ROSEMERY PITOJO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N788 of 2000

CONTI J
23 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 788 OF 2000

BETWEEN:	ROSMERY PITOJO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	23 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed pursuant to Order 32 rule 2(1)(c) of the Federal Court Rules.

2.        The Applicant pay the Respondent’s costs of the Application.

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 788 OF 2000

BETWEEN:	ROSMERY PITOJO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	23 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Rosmery Pitojo, is a national of Indonesia. She is of Chinese ethnicity and a Buddhist. She is 20 years of age and of single status. The applicant left Indonesia on 22 April 1999. On 28 April 1999 she applied to the Department of Immigration and Multicultural Affairs for a protection visa. The applicant’s claim related to the unrest that occurred in Indonesia in May 1998 where members of the Chinese community were harmed and had their property destroyed. Chinese retail owners were the main targets during such events. Whilst the applicant witnessed this unfortunate turn of events, she did not make any claim that she had in fact suffered physical harm during the unrest. The applicant added that the circumstances were such that the government was unable to protect Chinese Indonesians in May 1998. She fears that further turmoil could occur at any time, and that she in fact would be harmed or mistreated by the Indonesian government or roaming groups of people if further turmoil occurred. The violence which occurred in Indonesia in May 1998 was essentially the result of discontent stemming from the consequences of the economic crisis in Indonesia. The homes and businesses of Chinese Indonesians were among those burned or looted. Such people were also targeted physically.

2. On 4 August 1999 her application was refused, and on 9 September 1999 Miss Pitojo applied for a review of the delegate’s decision by the RRT. On 5 June 2000 the RRT affirmed the decision of the delegate to refuse Miss Pitojo’s application for a protection visa. On 21 July 2000, the applicant filed in this Court an Application for a Review of the decision of the RRT.

3. On 17 August 2000, Gyles J ordered that the Application for Review against the decision of the RRT be set down for hearing before me on 12 October 2000. The applicant was present at that directions hearing. Despite numerous attempts by the respondent’s solicitor Mr Nathan Cureton of Blake Dawson Waldron to obtain the applicant’s attendance at the hearing, the applicant failed to make any appearance. Accordingly, I made the following orders:

   (i)The matter be stood over to 23 October 2000 at 10:15am;

   (ii)The respondent notify the applicant by letter that the matter has been set down for hearing on this date;

   (iii)The respondent to provide an affidavit of service of this letter on the applicant.

   On that occasion, I also indicated that if the applicant failed to make an appearance on 23 October 2000, I would dismiss the application. Unfortunately, the applicant has not made an appearance today, the 23^rd day of October 2000. Mr Cureton for the respondent in complying with the orders I made on 12 October 2000 has filed in Court an affidavit of attempted service with the relevant letter attached. The respondent seeks orders that I dismiss the application under Order 32 rule 2(1)(c) of the Federal Court Rules, which provides:

   “If, when a proceeding is called on for trial, any party is absent, the Court may –

   (c)if the party absent is an applicant or non-claimant dismiss the action or cross-claim.”

   I am satisfied so far as I feasably can be that the applicant knew that the matter was to be heard on 12 October 2000. She has neither appeared on that hearing date nor provided the Court or the respondent’s solicitors with any explanation for her absence. I am also satisfied that the solicitors for the respondent have made all necessary attempts to inform the applicant of the pending hearing dates. The applicant has acted in a manner that has made herself incommunicable. The circumstances of this matter clearly attract Order 32 rule 2(1)(c) of the Federal Court Rules: see Runio v Minister for Immigration and Multicultural Affairs [1999] FCA 64.

   Accordingly, I order that the application of the applicant Rosemery Pitojo filed in court on 21 July 2000, be dismissed pursuant to Order 32 rule 2(1)(c). I further order that the applicant pay the respondent’s costs of the application.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             27 October 2000

Counsel for the Applicant:	No Appearance
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 October 2000
Date of Judgment:	23 October 2000