Federal Court Dismisses Appeal Due to Non-Appearance

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] 2002 v [NAME] [2002] FCA 1435

MIGRATION – appeal against Federal Magistrate's decision to affirm Refugee Review Tribunal's refusal of protection visa – appeal to [ADDRESS] determined by Chief Justice to proceed before single Judge – appellant filed in advance of hearing notice of motion seeking adjournment of appeal due to Ramadan religious activity – correspondence tendered to appellant in response to that motion indicated necessity for appearance at scheduled hearing – no appearance by appellant – appeal dismissed.

Federal Court of Australia Act 1976 (Cth) subs 25(1A) Federal Court Rules O 52 r 38A(1)(c) [APPELLANT] 2002 v [NAME] N 843 OF 2002 CONTI J 12 NOVEMBER 2002 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 843 OF 2002

BETWEEN: [APPELLANT] 2002

APPELLANT

AND: [APPELLANT] FOR IMMIGRATION AND [NAME] AND [NAME] AFFAIRS

RESPONDENT

[APPELLANT] OF ORDER: 12 NOVEMBER 2002

[APPELLANT]

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 843 OF 2002

[APPELLANT] 2002

APPELLANT

RESPONDENT

JUDGE: CONTI J

DATE: 12 NOVEMBER 2002

PLACE: [APPELLANT] FOR

JUDGMENT 1 This is an appeal from a decision of Federal [NAME] on 24 July 2002, which affirmed a decision of the Refugee Review Tribunal on 11 March 2002 to refuse the appellant a protection visa. On 4 September 2002, the Chief Justice accepted my recommendation that I should hear and determine this appeal as a single Judge, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 2 There has been no appearance by the appellant. His name has been called outside the Court by the court officer in the usual way. I observe that the appellant did attempt to file a notice of motion, apparently on 26 October 2002, for an adjournment of the hearing of the proceedings today for a period of four weeks. The ground for the adjournment appearing in that notice of motion is as follows: "For the ends of justice the time prayer for adjournment of the above mention matters for four weeks from the date of the matters has been listed for hearing at the Federal Court of Australia, NSW District Registry, [ADDRESS], [ADDRESS], [APPELLANT]." 3 An affidavit which the appellant also attempted to file in support of that motion on 26 October 2002 was to the effect that an adjournment would be sought until the expiration of the period of the Islamic Ramadan religious activity. In response to that notice of motion, [NAME] wrote to the appellant on 29 October 2002 in the following terms: "I refer to the above appeal proceedings which are scheduled for hearing before Conti J on 12 November 2002 at 10.15 am. [NAME] has requested that I write to you and return the original of the notice of motion and supporting affidavit which you attempted to file at the Registry of the Federal Court on 28 October 2002. That notice of motion seeks to postpone the above hearing due to the Ramadan period. [NAME]'s view is that the hearing should proceed as scheduled on 12 November 2002, unless the Minister consents to the adjournment. If you wish to make an application for adjournment, you may, on 12 November 2002, at the commencement of proceedings before Conti J, seek to file and have heard your notice of motion. However, you should also be prepared to present your case on that day, in the event that your adjournment application is unsuccessful. If you have any questions about this letter you may contact me by telephone on (02) 9230 8421." [ADDRESS] has not heard any further from the appellant by way of a response to that letter. My attention has also been drawn to the fact that the solicitors for the Minister wrote a letter on 7 November 2002 to the appellant, in the light of the letter which had been already sent by [NAME]. The material part of the Minister's letter reads as follows: "We refer to the above matter and to your purported notice of motion and supporting affidavit seeking an adjournment of your full Federal Court hearing. In accordance with the terms of your supporting affidavit, you have sought an adjournment on the basis that you are currently fasting as part of Ramadan and also because you require additional time in which to raise sufficient finances to engage legal representation. Please note that the respondent does not consent to your application for an adjournment for these reasons.

Accordingly, unless otherwise directed by the Court, your Full Federal Court hearing will proceed on Tuesday, 12 November 2002 at 10.15 am and you are required to attend on that occasion. If you have any queries in relation to this matter please contact us on the number below." 5 I should add that I have read the judgment of the Federal Magistrate, [NAME] Mr [NAME] which was delivered on 24 July 2002. I have been unable to discern any error in the reasons for judgment of [NAME] and I further observe that the notice of appeal filed 13 August 2002 does not set out any ground of appeal, viable or otherwise. I have no reason to doubt that [NAME]'s reasons for judgment were arrived at bona fide in the exercise of his jurisdiction, and as part of a bona fide attempt in that regard to address the grounds of the application for review of the finding of the Tribunal. In those circumstances I express the opinion that in the absence of any viable ground of appeal thus far not foreshadowed, the dismissal of the appeal, on the basis of the material I have before me, would have been inevitable. 6 I therefore order that the appeal of the appellant NAGU be dismissed pursuant to Order 52 rule 38A(1)(c) of the Federal Court Rules. I also order that the appellant pay the respondent's costs of the appeal. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 25 November 2002

No appearance by the appellant: [redacted] respondent: [redacted]

Solicitor for the respondent: [redacted]

Date of Judgment: 12 November 2002