Iroth v Minister for Immigration & Multicultural Affairs [2000] FCA 64

FEDERAL COURT OF AUSTRALIA

Iroth v Minister For Immigration & Multicultural Affairs [2000] FCA 64

NOLDY PAULUS IROTH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1243 OF 1999 SACKVILLE J 4 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1243 OF 1999

BETWEEN: NOLDY PAULUS IROTH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 4 FEBRUARY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1243 OF 1999

BETWEEN: NOLDY PAULUS IROTH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 4 FEBRUARY 2000

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 In this matter, an application for an order of review was filed on behalf of the applicant on 29 October 1999. The applicant is aged 23 and is an Indonesian national. He arrived in Australia on 2 February 1999 and lodged an application for protection visa with the Department of Immigration & Multicultural Affairs on 22 July 1999. On 26 August 1999, a delegate of the Minister for Immigration & Multicultural Affairs ("the Minister") refused to grant the applicant a protection visa. On 2 September 1999, the applicant sought review of that decision by the Refugee Review Tribunal. The RRT affirmed the delegate's decision on 22 October 1999. It is that decision which is challenged in the application filed on behalf of the applicant. 2 The applicant failed to appear at the first directions hearing of this matter on 12 November 1999. However, this was not due to any default on his part, as officers of the Villawood Detention Centre (where he was detained) were delayed in traffic. The application was re‑listed for a further directions hearing on 19 November 1999. The applicant attended on that day. 3 Directions were made for the further conduct of the case. The Minister was directed to file and serve a bundle of relevant documents. That was done in accordance with the directions of the Court. The applicant was directed to file and serve written submissions by 25 January 2000 and the proceedings were listed for hearing today. An order was also made that the Minister send to the applicant a letter setting out the orders made on 19 November 1999. That was also done. 4 When the matter was called for hearing today, there was no appearance on behalf of the applicant. Mr Reilly, who appeared on behalf of the Minister, tendered a facsimile from Villawood Detention Centre, where the applicant remains in detention. That facsimile attaches a declaration by a person identified as Odi Rasfi, to the effect that he does not wish to attend the Federal Court hearing set down for today "for personal reasons." Odi Rasfi is a name by which the applicant is known, as appears from the original application for a protection visa included in the book of relevant documents filed by the Minister. The applicant has not elaborated on what the personal reasons might be for his non-attendance in Court. 5 In these circumstances, Mr Reilly has applied on behalf of the Minister for the proceedings to be dismissed pursuant to O 32 r 2(1)(c) of the Federal Court Rules ("FCR"). Mr Reilly bases the application on the non-appearance of the applicant without any satisfactory explanation. 6 I have had the opportunity to read the reasons for the RRT's decision. A reading of those reasons does not suggest that the RRT fell into error in reaching the conclusion it did. In particular, there does not seem to be any reviewable error in the factual findings made by the RRT, nor does there appear to be any error in the principles applied by the RRT in determining that the applicant did not fall within a, "particular social group" for the purposes of Article 1A(2) of the Convention Relating to the Status of Refugees. 7 In my view, in these circumstances, the non-appearance of the applicant without adequate explanation warrants an order being made pursuant to O 32, r 2(1)(c) of the FCR for the proceedings to be dismissed. The applicant should pay the Minister's costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.