Tran v Minister for Immigration and Multicultural Affairs

[2001] FCA 413

FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration and Multicultural Affairs
[2001] FCA 413

IMMIGRATION – refugees – application for a protection visa – applicant sought to discontinue proceedings – failure to obtain consent from respondent or court – failure to appear at hearing – application dismissed.

Federal Court Rules Order 32 Rule 2(1)(c)

VAN SANG TRAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO N1257 OF 2000

CONTI J
SYDNEY
5 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NO N 1257 OF 2000

BETWEEN:	VAN SANG TRAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	5 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant pay the costs of the Respondent.

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	NO N 1257 OF 2000

BETWEEN:	VAN SANG TRAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	5 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Applicant, Van Sang Tran, is a Vietnamese national of sixty years of age. He arrived in Australia on 26 December 1994. On 19 February 1999 he lodged an application for a protection visa (Class XA) with the Department of Immigration and Multicultural Affairs. During the time the Applicant lived in Vietnam, the Applicant claimed that he had joined the ARVF, South Vietnamese army, in 1963, and had risen to the rank of Captain. When the communists took over South Vietnam in 1975, he was sent to a re-education camp. His further claims were as follows. In 1997 he was released from this camp and forced to live with his family in a new economic zone. After a flood occurred in 1978, the Applicant took his family to Cantho where he sold petrol to motorists. During that time he was subjected to surveillance by the local security authority as he was considered to be an undesirable element of the old regime. In order to prevent political upheaval occurring at the hands of reactionaries, at certain times of the year he was kept under house arrest. He feared persecution for his former activities against the communist regime, and for his publicly enunciated views regarding economic reforms in the area of petrol distribution at Cantho’s city market. On 3 October 2000, the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the RRT was not satisfied that the Applicant was a refugee within the Convention definition. On 22 November 2000 the Applicant filed in this Court an Application for Review of the decision of the RRT.

2. On 26 March 2001, the Applicant wrote a letter to the Registrar of the Federal Court seeking to withdraw his Application for Review. In response to such letter Registrar Kavallaris wrote back to the Applicant and informed him that he had two options, namely that he either obtain the consent of the Minister to withdraw or the permission of the Court to withdraw his Application. The Applicant was also informed that in either case, he would be liable for the Minister’s legal costs unless the Minister agreed not to seek an order for the Minister’s legal costs, or if he were to obtain an order from the Court that he not pay such legal costs. The Registrar further noted that his letter seeking to withdraw the Application was insufficient to continue the proceedings. A copy of the Applicant’s letter to the Registrar was provided to both the Solicitors for the Respondent Minister and to my Chambers. Since Registrar Kavallaris’ letter was sent to the Applicant, both my Associate and the solicitors for the Respondent have attempted to contact the Applicant to ascertain whether the Applicant wishes to obtain the consent of the Minister to withdraw, or the permission of the Court to discontinue. So far as I am aware, neither my associate nor the Minister’s solicitors have been able to make contact with the Applicant.

3. Unfortunately the Applicant has not made an appearance today that is to say, on 5 April 2001. Mr Mullins, who appears for the Minister, has filed in Court an affidavit setting out his attempts to make contact with the Applicant. The content of such affidavit indicates that Mr Mullins has not been able to communicate with the Applicant, despite having made reasonable efforts so to do. Accordingly the Respondent seeks today an order that I dismiss the Application pursuant to Order 32 Rule 2(1)(c) of the Federal Court Rules, which provide:

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

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

4. I am satisfied that so far as feasibly can be, the Applicant knew that his Application was to be heard by this Court on 5 April 2000. He has neither appeared at Court on that hearing date, nor has provided the Court or the Respondent’s solicitors with any explanation for his absence. The Applicant has also failed to take any further steps to obtain the Court’s permission or the Respondent’s permission to discontinue these proceedings. I am also satisfied that the solicitors for the Respondent have made all the necessary attempts to ascertain from the Applicant whether or not he wishes to have his case heard at today’s hearing. The Applicant has acted in the manner that has rendered himself incommunicable. The circumstances of this matter clearly attract the operation of Order 32 Rule 2(1)(c) of the Federal Court Rules.

5. Accordingly I order that the Application for Review made by the Applicant Van Sang Tran, filed in this Court on 22 November 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 five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             11 April 2001

Counsel for the Applicant:	No appearance
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 April 2001
Date of Judgment:	5 April 2001