BJY19 v Minister for Immigration & Anor (No.2)
[2019] FCCA 3183
•6 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJY19 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 3183 |
| Catchwords: MIGRATION – Application for reinstatement of show cause application – show cause application incompetent because of earlier refusal of an extension of time – reinstatement application dismissed. |
| Cases cited: BJY19 v Minister for Home Affairs & Anor [2019] FCCA 2156 |
| Applicant: | BJY19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 844 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 November 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Zinn of Mills Oakley |
INTERLOCUTORY ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application in a Case filed on 16 October 2019 is dismissed.
In respect of the Application in a Case, there is no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 844 of 2019
| BJY19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
I have before me an Application in a Case lodged on 16 October 2019. The application seeks the reinstatement of a judicial review application for which I refused an extension of time on 6 August 2019.[1]
[1] See BJY19 v Minister for Home Affairs & Anor [2019] FCCA 2156
The effect of the reinstatement order, if granted, would be to raise again for consideration the issue of an extension of time for the substantive judicial review application. In the substantive proceedings, the applicant was represented by Mr Leonard Jacob. In her present application, the applicant is acting for herself.
The application is supported by an affidavit filed with it. I received that affidavit and the applicant was not required for cross examination. Based upon that affidavit and what the applicant has told me from the bar table, her difficulties are these. She paid Mr Jacob $4,000 for his services, but she does not know what she got for her money. There was a lack of communication between the applicant and Mr Jacob during the former proceedings and subsequently. The applicant only found out about my decision of 6 August 2019 when the Minister’s Department contacted her about the expiration of her bridging visa. That was obviously a concern for her and stimulated this present application. Her bridging visa has since been renewed.
The applicant complains about the conduct of Mr Jacob. It is correct that there were some difficulties in the preparation and presentation of the substantive application. Among other things, the substantive judicial review application was defective when originally presented and had to be amended. It was because Mr Jacob apparently encountered difficulties in providing an acceptable form of application to the registry that there was an extension of time issue. However, as I set out in my judgment on 6 August 2019, I accepted the explanation for the delay.
The reason the extension of time was refused was because the legal argument proposed to be advanced was very weak. On her reinstatement application, the applicant is in no position to advance any other legal argument. She relied on Mr Jacob to run the argument.
As I explained to the applicant, it was her choice to engage Mr Jacob. If she is concerned about his professionalism or conduct, she has, as I have told her, the opportunity to complain to the Law Society.
I see nothing in the material available to me to indicate that there is something in the conduct of Mr Jacob that justifies intervention by the Court to vacate its earlier orders. It follows in my view that I should dismiss the reinstatement application and I so order.
There remains a question of costs. The applicant has apparently received correspondence from the Minister’s Department seeking payment of the sum of $5,000 I awarded in refusing the extension of time. The applicant sought the vacation of that order. The order was, however, properly made, having regard to the costs incurred on behalf of the Minister in responding to the earlier application and amended application.
The applicant claims to be impecunious. That may be a reason for her to raise with the Minister’s Department the question of waiver or write off of the costs that had been awarded. Waiver or write off is available where costs are irrecoverable because of the impecuniosity of the debtor.
There is nothing before me at this stage to support an argument that the costs should be paid by Mr Jacob rather than the applicant.
I will make no costs order in respect of the reinstatement application. That reflects the circumstances in which the application has been necessitated because of a lack of communication to the applicant from Mr Jacob. The order will be that there will be no order as to costs on the current application.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 6 November 2019
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