Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 1119

FEDERAL COURT OF AUSTRALIA

Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 1119

MIGRATION - Appeal against primary Judge dismissing application for judicial review of decision of Refugee Review Tribunal – failure of appellants to appear – appeal dismissed for want of appearance.

POOJA PRASHAR, VIKAS PRASHAR AND KARAN PRASHAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 174 of 2001 MOORE, SACKVILLE AND KIEFEL JJ 10 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 174 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: POOJA PRASHAR

FIRST APPELLANT

VIKAS PRASHAR

SECOND APPELLANT

KARAN PRASHAR

THIRD APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: MOORE, SACKVILLE AND KIEFEL JJ

DATE OF ORDER: 10 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellants 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 174 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: POOJA PRASHAR

FIRST APPELLANT

VIKAS PRASHAR

SECOND APPELLANT

KARAN PRASHAR

THIRD APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: MOORE, SACKVILLE AND KIEFEL JJ

DATE: 10 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT (Given ex tempore)

THE COURT 1 This is an appeal against the judgment of a Judge of this Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 18 September 2001 effectively refusing the appellants protection visas. The primary Judge gave judgment on 7 February 2001. 2 The appeal was listed for hearing this morning. There has been no appearance by the appellants and counsel for the Minister for Immigration and Multicultural Affairs ("the Minister") submitted the appeal should be dismissed. The notice of appeal was filed on 27 February 2001. It appears there were initially some problems concerning the appellants' address and a notice informing the appellants of the Full Court call-over was returned to the Registry marked "return to sender". The letter had been sent to 22 Premier Street Kogarah which was the address for service nominated in the notice of appeal. However after the letter was returned the appellants were contacted by the Registry by phone and informed of the call-over date. The first appellant attended the call-over and was informed the appeal would be heard some time in August. A letter was sent by the Registry to the same address in Kogarah informing the first appellant of the actual hearing date. As far as appears, that letter was not returned. 3 The first appellant contacted the Registry yesterday by phone and said she was unable to appear at the hearing of the appeal today. She said she only became aware of the hearing date for the appeal when she received the submissions from the Minister. Those submissions were filed on 7 August 2001. We have been informed by counsel for the Minister that they were sent to the appellants at 255 Forrest Road, Hurstville on 7 August 2001, which was the postal address identified by the appellants in the Full Court Status list. We understand the first appellant informed the Registry yesterday she had commitments at her son's school and also had to take another child to the doctor. The first appellant was later contacted by phone by the associate of Moore J and informed that it was necessary for the first appellant or someone on her behalf to attend at the hearing today. 4 Late yesterday afternoon the first appellant forwarded a facsimile letter to the Registry. She repeated that she would be unable to attend the hearing as "I am having another important appointments as well". She indicated she only received a letter from Paul Loftus (a solicitor in the employ of Blake Dawson Waldron who are the solicitors acting for the Minister) at 11:30 am yesterday. The import of the first appellant's letter is that she claims she only knew the appeal was listed for hearing today when she received the letter from Blake Dawson Waldron yesterday. It may be that what the first appellant says about her knowledge of the actual hearing date is correct. Even if this is so, however, she was plainly made aware at the call-over that the hearing would be some time in August. 5 The first appellant goes on to suggest in her letter that these events reflect some deliberate attempt to deny her and the other appellants (her spouse and child) a hearing and that the outcome of her appeal was predetermined. This is not so and the circumstances the Court confronts are, in part, a direct result of the appellants nominating an address for service which apparently did not, during the period leading to this hearing, remain an address at which documents could be served. The first appellant concludes her letter by indicating she wishes to "withdraw the case". 6 The decision of the Tribunal involved a lengthy and detailed consideration of the circumstances of the appellants in India on which their claims for protection visas were based. The appellants were represented by counsel at the hearing before the primary Judge and did not satisfy his Honour that the Tribunal had fallen into error as alleged by the appellants. However, his Honour did identify possible errors in the approach of the Tribunal but took the view that they were not material. The notice of appeal is in the most general of terms and does not identify any error of the primary Judge and/or the Tribunal. The notice appears to have been prepared by the appellants personally. 7 In our view the appropriate course is to make an order dismissing the appeal for non-appearance. The power to dismiss an appeal when the appellant does not appear is found (as at least one source) in O 52 r38A. That rule gives an appellant a right to move the Court by notice of motion to set aside the order dismissing the appeal. We order, under that rule, that the appeal is dismissed and the appellants 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 Court .