Jing Shu Li v Minister for Immigration & Multicultural Affairs [1997] FCA 448

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 872 of 1996 ) GENERAL DIVISION )

BETWEEN: JING SHU LI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

CORAM: EMMETT J PLACE: SYDNEY DATED: 17 APRIL 1997

EX TEMPORE REASONS FOR JUDGMENT This is an application brought under Division 2 of the Migration Act 1958 (Cth)("the Act"). Section 486 of that Act confers on the Federal Court jurisdiction with respect to judicially reviewable decisions. The application is brought for review of a decision of the Refugee Review Tribunal given on 30 September 1996. There does not appear to be any doubt that the decision is a judicially reviewable decision within the meaning of section 475 of the Act. When the matter was called on for hearing this morning there was no appearance for the applicant. That is consistent with correspondence which was exchanged between the applicant and the registry. I will deal with that shortly when I outline the history of the proceedings. The application was filed on 5 November 1996. No question appears to arise as to whether or not it was filed within the time limited by the Act. The proceedings were listed for direction on 5 December 1996 when there was no appearance by the applicant. An interpreter appeared on that occasion and indicated that he had been engaged to assist the applicant at the directions hearing but that the applicant was detained and was still "at the train station". However, the applicant did not appear notwithstanding that the proceedings were stood down on that occasion.. On 12 December 1996 the Australian Government Solicitor wrote to the applicant at the address shown in the application referring to her failure to appear at the directions hearing on 5 December 1996 and informing her that the proceedings had been listed on 19 December 1996. They were listed for directions again on 19 December 1996. Once again there was no appearance from the applicant. On 14 January 1997, the Australian Government Solicitor wrote again to the applicant informing her that the case had been listed for another directions hearing on 6 February. The applicant was by that letter informed that the Minister would be asking the court to dismiss the application. There was served with that letter a notice of motion seeking dismissal of the proceedings for want of prosecution pursuant to Order 30 rule 5 of the Federal Court Rules or alternatively on the basis that no reasonable basis of the application was disclosed pursuant to Order 20 rule 2 as amended by order 54B rule 5. The court file shows that on 6 February 1997 the applicant appeared in person at the directions hearing. Davies J granted leave to the respondent to file an affidavit of Gregory James Peek of 31 January 1997 and directed that the respondent file within three weeks any material that was before the decision-maker. The application for summary dismissal was adjourned to the hearing date. By letter of 12 February 1997 the registry notified the applicant at the address shown on the application of the hearing date fixed for today at 9.00 am. The registry subsequently received a letter dated 26 March 1997 which appears to have come from the applicant which said as follows: