VSAD v Minister for Immigration and Multicultural and Indigenous Affairs

Case •

[2005] FCA 954

•

6 JUNE 2005

FEDERAL COURT OF AUSTRALIA

VSAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 954

VSAD AND VSAE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1349 OF 2004

NORTH J
6 JUNE 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1349 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VSAD
FIRST APPELLANT

VSAE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

6 JUNE 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. The appeal be dismissed.

  2. The appellants pay the respondent’s costs of and incidental to the appeal. 

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1349 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VSAD
FIRST APPELLANT

VSAE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

NORTH J

DATE:

6 JUNE 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an appeal from a decision of Hartnett FM delivered on 15 October 2004. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 19 June 2003. The Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse the appellant a protection visa. The appeal was heard by a single judge of the Court pursuant to a determination made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (the Act) on 12 April 2005.

  2. On 18 April 2005 the registry of the Court wrote to each of the parties in these proceedings notifying that the appeal was listed for hearing at 10:15am on 6 June 2005.   This correspondence was mailed to the appellants at the address for service they had given upon filing of their notice of appeal on 3 November 2004.

  3. The appellants failed to appear when the appeal was called on for hearing.  Counsel for the respondent sought an order that the appeal be dismissed in default of the appellants’ appearance under s 2592B)(bb)(ii) of the Act.

  4. Counsel submitted that this was a more appropriate course of action than proceeding to hear and determine the substantive appeal in the appellant’s absence, as is contemplated by O 52 r 38A(1)(d) of the Federal Court Rules, because pursuant to s 25(2B)(bb) of the Act, one or both of the appellants could move the Court for the reinstatement of the appeal in the event that there is an acceptable reason for their non-appearance.  I agree with this submission.

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

Associate:

Dated:             11 July 2005

The Appellants did not appear.
Counsel for the Respondent: Dr S Donaghue
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 6 June 2005
Date of Judgment: 6 June 2005
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