Amj17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 37
•4 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 37
File number(s): SYG 338 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 4 February 2022 Catchwords: MIGRATION – Judicial review – decision of the Immigration Assessment Authority – Protection (Class XA) (Subclass 866) visa – citizen of Sri Lanka – applicant wishing to return to Sri Lanka – request to discontinue proceedings.
PRACTICE AND PROCEDURE – Applicant wishing to return to Sri Lanka – request to discontinue proceedings – time limitation on filing notice of discontinuance – whether to waive rule imposing time limitation – whether to grant leave to discontinue proceedings.
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr.1.07, 13.01, 29.13, Sch.2
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.190
Migration Act 1958 (Cth), s.476Cases cited: Bunnag v Minister for Immigration (No 2) [2008] FMCA 430
WZATK v Minister for Immigration and Border Protection [2014] FCA 1174
WZATK v Minister for Immigration and Border Protection [2015] HCASL 41Division: Division 2 General Federal Law Number of paragraphs: 12 Date of last submission/s: 1 February 2022 Date of hearing: 1 February 2022 Place: Perth The Applicant: Appeared in person (via telephone with the assistance of an interpreter) Counsel for the First Respondent: Ms J. Xiao Solicitor for the First Respondent: Clayton Utz For the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 338 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
1 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to rule 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Applicant be granted leave to discontinue the Originating Application filed 7 February 2017, dispensing with the requirement to file a Notice of Discontinuance pursuant to rule 1.07(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.
The Applicant pay the First Respondent’s costs in the sum of $5,044 by
1 February 2023.
3.Short written Reasons for Judgment be published from Chambers at a later date.
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 LUCEV
INTRODUCTION
On 1 February 2022 the Court made orders in this matter in the following terms:
1.Pursuant to rule 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Applicant be granted leave to discontinue the Originating Application filed 7 February 2017, dispensing with the requirement to file a Notice of Discontinuance pursuant to rule 1.07(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Applicant pay the First Respondent’s costs in the sum of $5,044 by
1 February 2023.
3.Short written Reasons for Judgment be published from Chambers at a later date.
These are the Reasons for Judgment referred to in Order 3 above.
JUDICIAL REVIEW APPLICATION
Before the Court is an application for judicial review filed by the applicant, AMJ17, in the Sydney Registry of the Court on 7 February 2017 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Immigration Assessment Authority (“Authority”) handed down 10 January 2017. The Authority affirmed a decision of a delegate, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), not to grant AMJ17 a Protection (Class XA) (Subclass 866) visa.
LITIGATION HISTORY
The Court notes that there has been a significant delay between the filing and hearing of the Judicial Review Application, and in relation thereto observes that:
(a)as stated above at [1], the Judicial Review Application was filed on 7 February 2017 in the Sydney Registry of this Court;
(b)on 21 March 2017 consent orders were made by a Judge in the Sydney Registry listing the matter for a callover before that Judge on 9 February 2018;
(c)on 23 January 2018 orders were made by the same Judge in the Sydney Registry vacating the callover hearing listed for 9 February 2018 and that the “matter is stood over generally to be given a further callover or final hearing date in due course”;
(d)for reasons which are not apparent nothing further occurred in relation to the matter until August 2021 when the Judicial Review Application was re-allocated to the Perth Registry of the Court;
(e)following the re-allocation of the Judicial Review Application to the Perth Registry it was listed for a directions hearing on 31 August 2021; and
(f)at the directions hearing on 31 August 2021 orders were made, including an order listing the Judicial Review Application for final hearing on 1 February 2022 by video link before a Judge in the Perth Registry.
REQUEST TO DISCONTINUE JUDICIAL REVIEW APPLICATION
On 29 January 2022 the Chambers of the presiding Judge received an email from AMJ17 as follows:
… I'm already inform iom to back to my country I'm waiting reply from iom. I like to back my Sri Lanka please cancel my hearing thanks
(The Court has assumed that the reference to “iom” is a reference to the International Organisation for Migration, a leading intergovernmental organisation in the field of migration.)
On 31 January 2022 Chambers responded to the email in an attempt to clarify if an adjournment or discontinuance of the Judicial Review Application was being sought by AMJ17, however, no reply was received.
When the Judicial Review Application was called for hearing on 1 February 2022, there was initially no appearance by AMJ17. Attempts to contact AMJ17 were successful and he was able to make an appearance via telephone. In relation to the request to cancel the hearing, AMJ17 said that he had decided to return to Sri Lanka because of his increasing sickness and deteriorating health, and that his family and children could look after him in Sri Lanka.
In relation to the request for discontinuance of the Judicial Review Application, the Minister submitted that the appropriate course was to, pursuant to r 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”), grant AMJ17 leave to discontinue the Judicial Review Application, and, pursuant to r 1.07(1) of the GFL Rules, to dispense with the requirement to file a Notice of Discontinuance.
Given:
(a)the submissions made by AMJ17 and the Minister; and
(b)the over-arching civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which, reduced to their essence, require the Court to consider:
(i)whether what it proposes might facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible; and
(ii)to avoid undue delay, expense, and technicality,
the Court considers it is appropriate in the circumstances to make an order in the terms suggested by the Minister.
COSTS
The Minister sought costs in the amount of $5,044.
Generally, costs follow the event and an unsuccessful party in litigation of this type pays the successful party's costs: GFL Rules, r 29.13; Bunnag v Minister for Immigration (No 2) [2008] FMCA 430 at [8] per Lucev FM. The incapacity of a party to pay an order for costs is not ordinarily a reason not to make an order for costs: WZATK v Minister for Immigration and Border Protection [2014] FCA 1174 per Siopis J, from which the High Court refused to grant special leave in WZATK v Minister for Immigration and Border Protection [2015] HCASL 41, and there is nothing in this case which would warrant non-payment of costs by AMJ17.
AMJ17 indicated that he was aware that he would have to pay the Minister’s costs, but said he would struggle to pay the amount sought but would endeavour to make the payment in instalments. In the circumstances, rather than the usual order that the Court as presently constituted makes allowing for one month to pay, the Court makes an order that there be one year to pay, and AMJ17 can then discuss with the Minister's department how that payment is to be made. The Court, therefore, makes an order that AMJ17 pay the Minister’s cost in the sum of $5,044 by 1 February 2023, which is less than the amount that the Minister is entitled to claim pursuant to Sch 2 of the GFL Rules.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 4 February 2022
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