FEDERAL COURT OF AUSTRALIA

Choudhry v Minister for Immigration &

Multicultural Affairs [1999] FCA 1014

SHAHID IQBAL CHOUDHRY v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N551 OF 1999

EMMETT J

16 JULY 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed;

2.         The applicant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     When this matter was called on for directions today, there was no appearance for the applicant.  The application is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), affirming a decision of the Minister's delegate not to grant a Protection Visa. 

2                     The applicant is a citizen of Pakistan.  He arrived in Australia as a visitor in August 1998 and applied for a Protection Visa on 7 September 1998.  On 3 December 1998, the decision was made by the delegate to refuse the application.  An application for review was lodged with the Refugee Review Tribunal on 22 December 1998.

3                     The reasons of the Tribunal indicate a history of non-attendance at hearings by the applicant.  By letter dated 28 January 1999, the applicant was notified that the Tribunal was unable to make the most favourable decision on the papers and that, accordingly, he was entitled to come to a hearing of the Tribunal to give oral evidence.  The applicant was asked to advise the Tribunal whether or not he wanted to appear before the Tribunal to give evidence and whether he wanted the Tribunal to take oral evidence.

4                     On 18 February 1999, the Tribunal received from the applicant a completed response to the hearing offer, advising that he wanted to come to a hearing.  By letter dated 4 March 1999, posted to the applicant at his last known place of address, the applicant was notified that a hearing had been scheduled for 13 April 1999.  However, on that day the applicant telephoned the Tribunal to say that he was ill and was unable to attend the hearing.  He also notified a new residential address and said that he would confirm that in writing.  No evidence of incapacity was ever received.  Nor was the Tribunal notified in writing of any change of address.

5                     By letter dated 20 April 1999, the applicant was notified that the hearing had been rescheduled for 30 April 1999.  The applicant did not attend the rescheduled hearing and subsequent inquiries of Australia Post revealed that he had not collected the notice of the hearing.  Accordingly, by letter dated 30 April 1999 and posted to the new residential address, which the applicant had notified by telephone, the applicant was notified that the hearing had been rescheduled for 12 May 1999.  The applicant did not attend the rescheduled hearing or contact the Tribunal to explain his failure to attend.  The Tribunal, therefore, made its decision and delivered reasons in the absence of the applicant.

6                     The Minister now asks for the proceedings to be dismissed, pursuant to Order 10, Rule 3(2) which provides as follows:

“If no applicant appears before the Court on a directions hearing, the Court may dismiss the application or make any other order which it thinks proper.”

7                     In the light of the history which I have just indicated and in the absence of the applicant, I order that the proceedings be dismissed.  I order that the applicant pay the Minister's costs.

Associate:

Dated:              16 July 1999