Akg19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1016
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKG19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1016
File number(s): BRG 515 of 2021 Judgment of: JUDGE EGAN Date of judgment: 9 November 2023 Catchwords: MIGRATION – Application for withdrawal of a filed Notice of Discontinuance not listed for hearing by the Registry – whether such application should be heard – matter listed for a directions hearing to enable the parties to make any relevant submissions. Legislation cited: Migration Act 1958 (Cth) s. 477 Division: Division 2 General Federal Law Number of paragraphs: 10 Date of last submission/s: 11 September 2023 Date of hearing: 11 September 2023 Place: Brisbane Solicitor for the Applicant: Ms Mwilambwe Solicitor for the Respondent: Ms Black ORDERS
BRG 515 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKG19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 NOVEMBER 2023
IT IS ORDERED THAT:
1.The matter be listed for directions hearing commencing at 9:45am on 29 November 2023 before His Honour Judge Egan in the Federal Circuit and Family Court of Australia sitting at Brisbane.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
On 1 February 2019, the Applicant filed an Originating Application for Review seeking judicial review of a decision of the Immigration Assessment Authority handed down on 11 January 2019 which affirmed the decision of a delegate to the Minister to refuse the applicant’s application for a protection visa. (BRG102/2019)
On 6 September 2019, a Notice of Discontinuance was filed in the above proceeding on behalf of the applicant.
On 12 September 2019, this Court made the following orders in proceeding BRG102/2019:
1.The title of the First Respondent be amended to the ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.Pursuant to Rule 13.01 (2)(b) of the Federal Circuit Court Rules 2001 (Cth), the applicant be granted leave to file the notice of discontinuance.
3.The Applicant pay the First Respondent’s costs of and incidental to the application for review, fixed in the amount of $5,227.00.
On 18 September 2019, the applicant filed another Originating Application for Review (BRG807/2019). [1] That Application sought an extension of time for the bringing of the Application pursuant to the provisions of s. 477 of the Migration Act 1958 (Cth). The one ground of review in that Application was as follows:
1.The original application was filed on 5 February 201 and the final hearing was scheduled for 18 September 2019. The applicant lodged a Notice of Discontinuance on 6 September 2019 and the court on 13 September 2019 granted leave for the applicant to lodge the Notice. However, since then, the applicant on receiving additional information from the Department of Home Affairs has decided to continue with his original application for judicial review. The applicant seeks leave from the court to withdraw the Notice of Discontinuance and to re-submit the original application filed on 5 February 2019.
[1] Annexure AA-11 to the affidavit of Ms Anastopoulos filed on 26 July 2023 in BRG515/2021.
Surprisingly, on 25 November 2019, the Applicant filed an Amended Originating Application for Review in BRG102/2019 which sought the following order:
‘That the Court grant leave for the applicant to withdraw the Notice of Discontinuance filed on 6 September 2019.’ [2]
[2] See Annexure AA-12 to the affidavit of Ms Anastopoulos filed on 26 July 2023 in BRG515/2021.
On 4 December 2019, the Applicant filed an Amended Application for Review in BRG807/0219 which sought an order that the time for the bringing of an application be extended. The amended ground of review was as follows:
1.The original application was filed on 5 February 2019 and the final hearing was scheduled for 18 September 2019. The applicant lodged a Notice of Discontinuance on 6 September 2019 and the court on 13 September 2019 granted leave for the applicant to lodge the Notice. However, since then, the applicant on receiving additional information from the Department of Home Affairs has decided to continue with his original application for judicial review. The applicant seeks leave from the court to withdraw the Notice of Discontinuance and to re-submit the original application filed on 5 February 2019 for an extension of time to start a fresh proceeding.
On 4 December 2019, His Honour Judge Jarrett made the following orders in BRG807/2019:
(1)The Application for extension of time filed on 4 December 2019 is dismissed.
(2)The Amended Application filed on 4 December 2019 is dismissed.
(3)The Applicant pay the First Respondent’s costs of and incidental to the Applications fixed in the sum of $3,737.00.
Notwithstanding the dismissal of the applicant’s claims in BRG807/2019 by order of His Honour Judge Jarrett, the application to withdraw the Notice of Discontinuance filed on 25 November 2019 in BRG102/2019 has never been listed for hearing. A search of Chamber’s email records has revealed that Chambers had not received any email or other contact from the Registry in respect of BRG102/2019 since 13 September 2019, that contact being in respect of the making of the order of this Court on 12 September 2019. The filing of that application, and the non-listing of that application for hearing, may or may not be of significance. In any event, it is a matter about which the parties are entitled to make submissions.
In the circumstances, it is therefore appropriate that this proceeding, and the proceeding in BRG102/2019, be listed for a directions hearing on 29 November 2023.
And it is so ordered.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Egan. Associate:
Dated: 9 November 2023
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