Bondartchouk v Minister for Immigration & Multicultural [2001] FCA 599 (22 May 2001)

Last Updated: 23 May 2001

FEDERAL COURT OF AUSTRALIA

Bondartchouk v Minister for Immigration & Multicultural

Affairs [2001] FCA 599

OLEG BONDARTCHOUK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 553 of 2000

KATZ, CONTI AND STONE JJ

22 MAY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N533 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	OLEG BONDARTCHOUK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	KATZ, CONTI AND STONE JJ
DATE OF ORDER:	22 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with 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	N533 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	OLEG BONDARTCHOUK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	KATZ, CONTI AND STONE JJ
DATE:	22 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT OF THE COURT

1 This is an Appeal from the Decision of a Judge of this Court made on 4 May 2000, to dismiss the Appellant's application for an Order of Review of the Decision of the Refugee Review Tribunal ("the RRT") made on 27 January 2000 for the reason that the Appellant failed to appear before the Primary Judge on 4 May 2000, being the date allocated for the hearing of the Application. His Honour was not required to examine in any detail the contents of the decision of the RRT which affirmed the decision of the delegate of the Minister that the Appellant was not a refugee within the Convention definition.

2 The Appellant is a citizen of Russia born in July 1965. He arrived in Australia with his wife and children in May 1997 on a visitor's visa and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 19 June 1997. For reasons which will become apparent, it is not necessary to set out in any detail the account of his experiences in Russia before arriving in Australia. It is sufficient to say that he appears to have claimed to have been something of a political activist in the Liberal Democratic Party of Russia (LDPR). He further claimed that he had attended meetings and taken part in party projects since becoming a member in August 1994. When his matter was heard before the RRT, the Appellant provided written submissions, and made further oral submissions, which set out his experiences and the harm he claimed to have suffered in Russia by reason of his membership with the LDPR.

The RRT's Findings

3 The reasons given by the RRT in its decision on 27 January 2000 extend over some 30 pages. It is clear from those reasons that it held some serious reservations as to the credibility of the Appellant's claims. By reason of the RRT's findings as to the Appellant's credibility, it did not accept his claims that he and his family experienced persecution under the former Soviet regime. Furthermore, on the country information available to the RRT, it was not satisfied that the relevant security services in Russia would be concerned with persons, such as the Appellant, who had engaged in the kind of political activities in which the Appellant claimed to have been involved in the 1980s and early 1990s. Consequently the RRT was not satisfied that the Appellant nor his family had a well-founded fear of persecution for a Convention reason.

The Application for Judicial Review of the RRT's findings

4 For some unknown reason, the Application for an Order of Review of the Decision of the RRT does not exist in the Appeal Book. Thus it is unclear at this present stage what grounds if any, the Appellant specified in his Application before this Court under s 476 of the Migration Act 1958 (Cth). In any event, this Appeal does not raise any question of principle that may be associated with an interpretation of any provisions set out in s 476 of the Act.

5 When the matter was called on for hearing before the Primary Judge, the Appellant did not appear. As the Primary Judge has recorded in his Reasons for Judgment, Counsel for the Minister informed the Court that his instructing solicitor had two telephone conversations with the Appellant as follows. On the day prior to the hearing of the Application before the Primary Judge, the Appellant told the solicitor for the Minister that he was ill and was seeking an adjournment of the hearing date. By reason of his claimed illness the solicitor for the Minister suggested that he obtain a medical certificate. On the day of the hearing before the Primary Judge, the Appellant told the solicitor for the Minister that he could not afford to see a doctor to obtain a medical certificate and that he was too ill to come to Court. Since no medical certificate was provided by the Appellant when the matter was before the Primary Judge, the legal representatives for the Minister opposed an adjournment. Instead the course was adopted whereby the Minister sought dismissal of the proceedings pursuant to Order 32 Rule 2(1)(c) of the Federal Court Rules. Such rule provides (relevantly) as follows:

"2 (1) If, when a proceeding is called on for trial, any party is absent, the Court may:

...

(c) If the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or

..."

6 There is nothing before us to suggest that the Primary Judge acted improperly in exercising his discretion to dismiss the proceedings pursuant to Order 32 Rule 2(1)(c) of the Federal Court Rules. This is for the reason that when the Court is faced with a situation where an applicant says that he or she is unwell and is unable to attend Court, it is necessary in order to ensure that the Court process is not abused that some evidence be adduced to indicate that the claim made by the applicant as to his or her state of health has substance. By reason of the Appellant's failure first, to appear, and secondly, to provide the Minister or his lawyers with any document indicating the absence of health said to have been experienced by the Appellant, it was entirely open to the Primary Judge not to accept that the Appellant was unable to attend the hearing on that day on account of illness.

The Appeal

7 When his appeal from the Primary Judge's decision was called on for hearing today, the Appellant was absent, although, unlike the situation before the Primary Judge, this Court was informed of no communication which had been received from the Appellant claiming inability to attend. In light of the Appellant's absence, the Minister made application under Order 52 Rule 38A(1)(c) for the dismissal of the appeal. The Court was satisfied that that was the appropriate course in the circumstances and that the Appellant should be ordered to pay

the costs of the Respondent of the proceeding. We so ordered.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Katz, Conti and Stone.

Associate:

Dated: 22 May 2001

Counsel for the Respondent	Mr S Lloyd
Solicitor for the Respondent	Australian Government Solicitor
Date of Hearing	22 May 2001
Date of Judgment	22 May 2001