Lee, Hee Sook v Minister for Immigration & Multicultural Affairs [1998] FCA 1744

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 619 of 1998

BETWEEN: HEE SOOK LEE

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

respondent

JUDGE: SACKVILLE J

DATE: 14 December 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT In this matter, the respondent, who is represented by Mr Reilly of Counsel, moves for dismissal of the proceedings under Federal Court Rules Order 32, r 2(1)(c). Mr Reilly makes this application on the ground that the applicant did not appear when the matter was called for hearing. In support of the application, Mr Reilly read an affidavit of Ms Nanson, a solicitor employed by the Australian Government Solicitor ("AGS"). That affidavit establishes that letters were sent to the applicant at the address for service specified in her application. The letters advised the applicant of orders made at a directions hearing on 29 October 1998. These orders listed the matter for hearing today, 14 December 1998 and directed the applicant to file and serve written submissions on or before 7 December 1998. The letters sent by the AGS to the applicant advised her that if she failed to appear at the hearing, the Court would be asked to dismiss the application with costs. The applicant has neither filed written submissions nor appeared today. The application for an order of review was filed on 23 June 1998, by the applicant herself. Although the grounds stated in the application for an order for review are not entirely clear, the substance of the applicant's complaint appears to be that the Immigration Review Tribunal ("IRT") should have considered her application as one for a sub-class 428 religious worker visa rather than (as it did) an application for an educational (temporary) class TH visa. The applicant lodged her original application for a visa on 19 July 1996. She sought a temporary visa to enable her to be employed as a lecturer of music at a theological college for a period of two years from 1 September 1996. The other circumstances relevant to this case are outlined in detail in the reasons given by IRT for its decision on 20 May 1998, affirming a decision made by a review officer on 30 January 1998 to refuse the applicant an education (temporary) class TH visa. The relevant point for present purposes is that the period of two years referred to in that original application has now expired. Whether or not the expiration of the period of two years renders the application for review moot, I think that the circumstances are such as to justify acceding to the Minister's application. The applicant has been notified of today's hearing and of the likely consequences of her non-appearance. She has chosen not to appear. Moreover, there appears to have been no attempt to comply with the directions given on 29 October 1998. Accordingly, I make orders that the application be dismissed. I also order the applicant to pay the Minister's costs.