Rayos v MIMA [1998] FCA 82

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 608 of 1997

BETWEEN: Maria corazon rayos

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE: 5 FEBRUARY 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: When this matter was called on for hearing today there was no appearance by the applicant despite having been called in the precincts of the court. The matter was last before me on 24 October, 1997 when the applicant appeared in person. On that day I fixed the proceedings for hearing today and I am satisfied that the applicant understood that the matter was fixed for hearing today. I have been informed by Mr Markus, who appeared for the Minister, that he received a telephone call from the applicant on 27 January 1998 in which the applicant indicated that she did not wish to proceed with the matter. Mr Markus said that he told her that he expected that the Minister would seek costs but that he would obtain instructions. He then endeavoured to speak to the applicant by telephone at the several numbers which he had available to him. He was unsuccessful in communicating with the applicant. The Minister now moves under Order 32 Rule 2(1)(c) for dismissal of the proceedings. That rule providesthat if, when a proceeding is called on for trial, any party is absent the court may, if the party absent is an applicant, dismiss the action. I have read the decision of the Refugee Review Tribunal of 14 July, 1997 which is the subject of the application for an order of review before this court. The application to this court does not on its face disclose any grounds within the provisions of the Migration Act 1958 (Cth) which would justify interfering with the decision of the Tribunal. There is nothing which I have observed in my reading of the decision of the Tribunal which indicates any error on the part of the Tribunal. In the circumstances I consider that the appropriate course is to order that the proceedings be dismissed with costs. I also propose to direct the Minister to notify the applicant at the last address known to the Minister of the terms of Order 35 Rule 7(2)(a) which provides that when an order has been made in the absence of a party the court is authorised to set aside the order. I give that direction and I order that the proceedings be dismissed with costs.