Ubay v Minister for Immigration and Multicultural Affairs

[1999] FCA 983

FEDERAL COURT OF AUSTRALIA

Ubay v Minister for Immigration & Multicultural Affairs [1999] FCA 983

EDNA UBAY v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 171 of 1999

TAMBERLIN J
19 JULY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 171 OF 1999

BETWEEN:	EDNA UBAY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	TAMBERLIN J
DATE OF ORDER:	19 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with costs.

2.The respondent is to notify the applicant forthwith by certified mail of the orders made today and as to the applicant’s entitlement under O 35 r 7 of the Federal Court Rules to apply to vary or set aside the judgment and the orders made.

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 171 OF 1999

BETWEEN:	EDNA UBAY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	19 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Ex-tempore Judgment

1. In this matter there has been no appearance for the applicant.  The applicant has sent to the Court, by fax, a medical certificate which is dated 18 July 1999 and which states that she is suffering from viral gastro-enteritis and is unfit for any duties/schooling from 18 July to 19 July.  No further details are given.  There is a reference to an ultrasound but there are no detailed particulars as to what the difficulty is.

2. In the reasons for decision of the Refugee Review Tribunal (“the RRT”), which are the subject of the application for review, it is noted on page 4 that the hearing before RRT was originally fixed for 15 January 1999 and on the day of the hearing the applicant faxed a medical certificate to the RRT indicating that she was unable to attend.  The certificate indicated the applicant would be “fit for duty” on 16 January 1999.  The hearing was re-scheduled for 25 January 1999 and the applicant was advised accordingly.

3. On 25 January 1999 the applicant again faxed a medical certificate to the RRT indicating that she was “unfit for any duties” on that day.  This certificate indicated the applicant would be “fit to resume duties” on 26 January 1999.  The hearing was re-scheduled for 27 January 1999.  The applicant was advised that if she did not attend the hearing and a postponement had not been granted, the RRT would assume that she no longer wanted to come to a hearing and a decision could then be made without further notice.  The applicant did not attend the hearing or contact the RRT to explain her failure to attend.

4. I record that there have been some discussions by the applicant with my Associate in the course of which it was indicated the applicant would be coming in from Bankstown this morning.  It subsequently transpired, however, that she did not intend to come to court today.  Having regard to these matters, I think that it is appropriate to dismiss the application under O 32 r 2 (1)(c) of the Federal Court Rules since the proceeding was called on for trial and the applicant has failed to appear.  I do not think it is appropriate to adjourn the hearing of the matter, but I note that under the provisions of O 35 r 7(2) of the Rules, the Court may vary or set aside a judgment, after the order has been entered, where it has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order.

5. Having regard to this rule I think it is appropriate that the provisions of the rule should be notified to the applicant forthwith at her present address and that the orders be made as I indicated earlier.  Accordingly, I dismiss the application with costs, but I direct the respondent to notify the applicant forthwith by certified mail of the orders which have been made today and as to her entitlement under O 35 r 7 to apply to vary or set aside the judgment and the orders made.

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

Associate:

Dated:             19 July 1999

Counsel for the Applicant:	No appearance
Solicitor for the Applicant:	No appearance
Counsel for the Respondent:	Robert Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 July 1999
Date of Judgment:	19 July 1999