FEDERAL COURT OF AUSTRALIA

Mat v Minister for Immigration & Multicultural Affairs [1999] FCA 1115

MIGRATION - application for review of decision of Refugee Review Tribunal refusing protection visa - dismissal of proceedings under Federal Court Rules, O 32, r 2(1)(c), on the basis that the applicant has not appeared

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

SARY MAT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 233 OF 1999

JUDGE:                      SACKVILLE J

PLACE:                      SYDNEY

DATE:                        5 AUGUST 1999

THE COURT ORDERS THAT:

1.                  The application be dismissed.

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

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

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application for an order of review filed by the applicant on 25 March 1999.  It seeks review of a decision of the Refugee Review Tribunal (“RRT”) made on 24 February 1999.  In that decision, the RRT affirmed a decision not to grant the applicant a protection visa.  The applicant, so it appears, is a citizen of Cambodia who arrived in Australia on 6 May 1997.  The RRT reached its decision on the basis that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Cambodia.  The RRT did not accept a number of key aspects of the applicant's claims before it. 

2                     Mr Pearson, who appears on behalf of the Minister, has prepared an affidavit.  He relies upon the material in that affidavit in support of an application that the proceedings be dismissed by reason of the non-appearance of the applicant.  The Court has power to dismiss the proceedings pursuant to Federal Court Rules, O 32, r 2(1)(c).

3                     Mr Pearson's affidavit records the following chronology.  On 6 May 1999, the application was listed for directions before me.  The applicant did not appear, but was represented by another person.  On that date, the matter was set down for hearing today, 5 August 1999.  Consequential directions were made.  On the same day, Mr Pearson wrote to the applicant to notify him of the orders that had been made.  That letter was sent to the applicant at his address for service.  A copy was also sent to the solicitors then representing the applicant.

4                     On 19 May 1999, Mr Pearson received from the Department of Immigration and Multicultural Affairs, a copy of a letter from the applicant to his solicitors dated 19 May 1999.  This letter indicated that the applicant had given instructions that he wished to withdraw his application for review, as he had decided to return to Cambodia.  Mr Pearson thereafter sought to obtain the applicant's written consent to orders that would dispose of the matter.  However, those consent orders were not signed by the applicant.

5                     On 29 June 1999, the Court wrote to the applicant seeking to bring the hearing forward to the last two weeks of July 1999.  No reply was received to the letter sent by the Court.  Accordingly, today remained as the scheduled hearing date for the application.

6                     Inquiries made on behalf of the Minister have ascertained that the applicant in fact left Australia to return to Cambodia on 31 May 1999.  This is evidenced by a copy of the movement records maintained by the Department.  In these circumstances, it is quite clear that the applicant, although he has not signed consent orders, has decided not to pursue his application for review of the RRT’s decision.  He is no longer in the country. 

7                     It is appropriate that an order be made dismissing the proceedings.  Accordingly, the application will be dismissed.  I order the applicant to pay the Minister's costs.

Associate:

Dated:              5 August 1999