BVQ18 v Minister for Home Affairs

[2019] FCCA 1006

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1006

Catchwords:
MIGRATION – Application for judicial review of Immigration Assessment Authority decision – Applicant notified Registry of his intention to file a notice of discontinuance within 14 days of the scheduled final hearing – Applicant needs leave to file the discontinuance – leave not opposed by the Minister – leave granted pursuant to r.13.01(2) of the Federal Circuit Court Rules 2001 (Cth) – costs awarded as sought by the Minister.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.01

Applicant: BVQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1017 of 2018

Judgment of: Judge Baird

Hearing date: 5 April 2019

Date of Last Submission: 5 April 2019

Delivered at: Sydney

Delivered on: 5 April 2019

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Ms C. Juarez, MinterEllison

ORDERS

THE COURT NOTES THAT the matter was called once inside the Court and three times outside the Court at 2:37pm, and there was no appearance by or on behalf of the Applicant.

THE COURT FURTHER NOTES THAT the First Respondent has received a Notice of Discontinuance substantially in the approved form from a person claiming to be the Applicant, received approximately 5pm Thursday, 4 April 2019, and upon the First Respondent handing up the Notice of Discontinuance to the Court, and consenting to the grant of leave to its filing:

THE COURT:

1. GRANTS LEAVE pursuant to r.13.01(2) of the Federal Circuit Court Rules 2001 (Cth), to the Applicant, in absentia, to file in Court the Notice of Discontinuance.

2. ORDERS THAT the Applicant pay the First Respondent’s costs fixed in the sum of $5,130.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1017 of 2018

BVQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

1. The Applicant has, by notice of discontinuance faxed to the First Respondent’s solicitors at approximately 4.52 pm Brisbane time on 4 April 2019, indicated that he wished to discontinue the application, seeking orders to leave to discontinue and to vacate the hearing to be held today.  The Minister has tendered the notice of discontinuance which I note does not appear to have been yet filed in the registry, or if filed, has not been accepted.  Ms Juarez, who appears for the Minister, has instructions not to oppose the notice of discontinuance, and to regularise matters by the Court’s grant of leave to file the notice of discontinuance. She also seeks costs.

2. I note that the registry of the Court received an email sent Saturday, 30 March 2019 at 5 pm under the subject heading of the pseudonym “BVQ18” from a person of the same name as the Applicant subject to transcription of a “V” in the surname with the letters “WA”. 

3. That email was as follows:

   Dear Registrar,

   I have already registered with IOM in order to leave Australia.

   So I withdraw my FCC application as I do not wish to attend the hearing to be held on 5 April 2019. 

   Please and accept and acknowledge my withdrawal request.

   Thank you. 

   Yours faithfully –

   And then the name of the Applicant. 

4. On Monday, 1 April 2019 at 12.05 pm, (I am assuming that that is Australian Eastern Daylight Time in relation to both times) to that same email address, the registry responded to the Applicant’s email and advised the Applicant that if he wished to discontinue the proceeding, he may wish to file a notice of discontinuance via an approved filing method such as fax, and a fax number was then given.  The registry person then provided a link to the form of discontinuance. Accordingly, I am satisfied that the Applicant seeks to discontinue the proceeding. 

5. I grant leave to the Applicant to file notice of discontinuance, and I accept for filing in Court the notice of discontinuance, which will be placed on the Court file. 

6. Ms Juarez seeks costs. I note that pursuant to rr.13.01(1) and (2) of the Federal Circuit Court Rules 2001 (Cth) whilst a party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form, such notice of discontinuance may not be filed except with leave of the Court or a registrar within 14 days of the date fixed for the final hearing of the application. Upon a notice of discontinuance, another party in the proceeding may apply for costs.

7. Ms Juarez seeks costs fixed in the amount of $5,130.  I will order the Applicant pay the First Respondent’s costs fixed in the sum of $5,130. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date:  12 April 2019