Nguyen v Minister for Immigration &

[1999] FCA 884

FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration &
Multicultural Affairs [1999] FCA 884

MANH THUONG NGUYEN v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

NG 254 OF 1998

EMMETT J
24 JUNE 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG254 OF 1998

BETWEEN:	MANH THUONG NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	24 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        There be no order as to costs of the proceedings.

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	NG254 OF 1998

BETWEEN:	MANH THUONG NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	24 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. On 16 December 1997, a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) made an order that the applicant be deported.  On or about 11 January 1998, the applicant lodged an application to the Administrative Appeals Tribunal (“the Tribunal”) to review that decision.

2. On 26 March 1998, I granted leave to the applicant to file and serve an application for an order of review of a decision of the Minister to keep the applicant in immigration detention from the time he would otherwise be entitled to be released from the custody of the New South Wales Department of Corrective Services, and a consequential decision of the Minister's delegate to request the Deputy Governor of the Cooma Correctional Centre (“the Centre”) to hold the applicant at the Centre or at any other New South Wales Correctional Centre on immigration detention from the time at which the applicant’s custodial sentence was completed.  I appointed 2.15pm on 27 March 1998 for the return of the application and I abridged the time for service of the application. 

3. The Minister appeared before me by his solicitor on 27 March 1998 and I made orders, by consent, giving leave to the applicant to amend the application for an order of review to include review of any decisions of the Minister that the applicant be kept in immigration detention on and from 1 March 1998 or be kept in immigration detention at a New South Wales correctional centre on and from 1 March 1998.

4. On 2 April 1998, orders were made by consent by Madgwick J that the Minister do such things as are necessary to effect the applicant's release from immigration detention as soon as reasonably possible.  His Honour also ordered that the applicant’s release from detention be subject to certain conditions involving the place of residence of the applicant and regular reporting by the applicant to the office of the respondent.  The terms on which the applicant was released from custody, as I have said, required regular reporting until such time as the Tribunal's decision was given. 

5. The Tribunal has now given a decision on 6 May 1999 affirming the Minister’s decision to deport the applicant.  In those circumstances, the matter came back before me for final disposition.

6. Various directions hearings were vacated between the time when Madgwick J made his orders and 4 June 1999.  On 4 June 1999, I again stood the matter over, for directions, to 18 June 1999.  On 18 June 1999, there was no appearance for the applicant.  In the meantime, a notice of withdrawal from acting had been filed on behalf of the applicant's solicitor.  An affidavit, in accordance with Order 45 rule 7, had been filed by the solicitor on 15 June 1999.  On 18 June 1999, I fixed the matter for hearing for today.  There has been no appearance for the applicant today. 

7. On 18 June 1999, the respondent's solicitor wrote to the applicant informing him of the order which I had made, listing the case for final hearing today.  The letter went on to say:

   “4.      As you have now come to an arrangement with the Department about conditions of your release from detention, you may not wish to proceed with this case. 

   5.        If so, please contact me so that arrangements can be made to finalise it without the hearing having to take place. 

   6.        If I do not hear from you, and you do not appear at the hearing, I will be asking the court to dismiss your case in your absence.”

8. On 22 June 1999, the applicant telephoned Ms Radburn in the Australian Government Solicitor's office.  The applicant informed Ms Radburn that he had received the letter of 18 June 1999, but did not think he should have to come to court because he had come to an arrangement with the Department of Immigration & Multicultural Affairs.  Ms Radburn informed the applicant that he should attend.  As I have said, notwithstanding those communications, there has been no appearance for the applicant today. 

9. The Minister seeks that the application be dismissed.  In the circumstances, I order that the application be dismissed.  The solicitor for the Minister makes no application for costs of the proceedings.  That appears to me to be appropriate in the circumstances since the Minister, in effect, agreed to the relief, at least on terms, which was sought in the application.  Accordingly, I shall note positively that I make no orders as to the cost of the proceedings.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            24 June 1999

There was no appearance for the Applicant.
Solicitor for the Respondent:	Gregory Peek for the Australian Government Solicitor
Date of Hearing:	24 June 1999
Date of Judgment:	24 June 1999