Agbarakwe v Minister for Immigration & Multicultural Affairs [1999] FCA 15 (13 January 1999)

Last Updated: 18 January 1999

FEDERAL COURT OF AUSTRALIA

Agbarakwe v Minister for Immigration and Multicultural Affairs [1999] FCA 15

CALITO AGBARAKWE v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1113 of 1998

HILL J

13 JANUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1113 OF 1998

BETWEEN:	CALITO AGBARAKWE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	13 JANUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant 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	NG 1113 OF 1998

BETWEEN:	CALITO AGBARAKWE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	13 JANUARY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 Before the Court is an application lodged by Mr Calito Agbarakwe to review a decision of the Refugee Review Tribunal ("the Tribunal"). The application was filed with the Court on 22 October 1998. It was set down for directions thereafter before me on 30 October 1998, on which occasion the applicant appeared in person. He was at that time in detention at the Villawood Detention Centre. On that day I ordered, among other things, that the applicant file and serve any affidavits he wished to rely upon on or before 2 December 1998 and that the matter be listed for hearing on 18 January 1999. No affidavits were lodged in accordance with that direction.

2 On 4 December 1998 my Associate faxed to the applicant a letter advising that the date for hearing had been altered from 18 January 1999 to 13 January 1999. That fax was sent to the applicant at the Villawood Detention Centre. A similar fax, of course, was sent to the Australian Government Solicitor. The latter communication precipitated a letter dated 9 December 1998 sent by facsimile from the Australian Government Solicitor to the Escort Coordinator, Villawood Detention Centre, advising that the applicant was required to attend Court on Wednesday, 13 January and requesting that arrangements be made to have him brought to Court.

3 When the matter was called on this morning there was no appearance for the applicant. The explanation for this appears from an affidavit of Susan Fraser of 12 January 1999 which indicates that in a conversation she had with the Escort Coordinator yesterday she was told that the applicant had escaped from detention on 22 December 1998 and that he was no longer at the Villawood Detention Centre.

4 Application is now made by the respondent Minister pursuant to Order 32, rule 2(1)(c) of the Federal Court Rules, that I dismiss the application on the basis that the applicant was absent, the proceedings having been called on for trial.

5 There is, of course, a judicial discretion in determining whether an order should be made under that rule. In exercising that discretion in favour of the application in this case I would note that I have read the reasons for decision of the Tribunal and the form of application. Those documents indicate that the grounds of the application were that the relevant procedures were not followed (there is no explanation for this), the decision was an improper exercise of power (again there is no explanation for this) or that there was no evidence or other material to justify the making of the decision, I do not need to consider whether the last ground is an appropriate ground for review. All I need say is that a perusal of the reasons for decision of the Tribunal do not suggest that the applicant would be successful in an application for review of the decision on any of the grounds set out in the Migration Act 1966 (Cth). In essence, the Tribunal decided the matter on the basis that it did not believe the applicant whose credit had suffered and the Tribunal found him not to be a credible witness.

6 I also take into account the fact that given that the applicant has escaped from detention it is highly unlikely he has any interest in proceeding with the present application.

7 In these circumstances, I dismiss the application with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated: 13 January 1999

Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 January 1999
Date of Judgment:	13 January 1999