CYA22 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1083
•18 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYA22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1083
File number(s): SYG 1246 of 2022 Judgment of: JUDGE MARQUARD Date of judgment: 18 August 2025 Catchwords: PRACTICE AND PROCEDURE – Where solicitor purported to withdraw day before hearing – Notice to Withdraw invalid – Rule 9.03(2) of FCFCOA Rules – leave granted to withdraw and adjourn – costs pursuant to rule 22.06 reserved Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 9.02, 9.03, 22.06
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Cases cited: Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1159
Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 18 August 2025 Place: Sydney Counsel for the Applicants: No appearance by or on behalf of the Applicants Solicitor for the First Respondent: Mr S Knuckey of HWLE Lawyers Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 1246 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYA22
First Applicant
CYB22
Second Applicant
CYC22
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
18 AUGUST 2025
THE COURT ORDERS THAT:
1.The hearing before Judge Marquard on 18 August 2025 at 10:15am is adjourned.
2.Pursuant to r 9.03(2) of the Federal Circuit Court and Family Court of Australia
(Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), leave is granted to the solicitor for the applicants to withdraw from the proceedings as of the time and date of this order.
3.The applicants must file and serve a Notice of Address for Service by 4:00pm on 19 August 2025.
4.Leave is granted to the newly appointed lawyer for the applicants (if any) to file and serve an address for service and Notice of Appointment by 4pm on 19 August 2025.
5.The matter is listed for directions on Tuesday 26 August 2025 at 9:30am for final hearing and other timetabling matters.
6.Leave is granted to Mr Wong of A Quantum Leap Legal and the first respondent to file and serve any Submissions and Affidavit material on which they wish to rely in respect of the question of costs pursuant to r 22.06 of the Rules by 4:00pm on 22 August 2025.
7.The question of costs of, and incidental to, today's adjournment, and any question arising in respect of a costs order to be made pursuant to r 22.06 of the Rules, is reserved to a date to be advised.
8.The solicitor for the first respondent is to serve a copy of these orders on each of the applicants and the solicitor currently on the record for them by 4:00pm on 18 August 2025.
9.The parties are granted liberty to apply on 2 days' notice.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE MARQUARD
By an application filed on 18 August 2022, the applicants sought judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) dated 21 July 2022. The Tribunal affirmed a decision of the Department of Home Affairs (Department), as delegate of the first respondent, dated 3 June 2021, to refuse to grant the applicants Protection (Class XA) (Subclass 866) visas (Protection visas).
At the time the applicants commenced these proceedings in August 2022, they were represented by Mr Wong from A Quantum Leap Legal. This Court has had extensive correspondence and communications with the applicant through this firm since that date as follows:
·email attaching Registrar Carney’s Orders made on 8 November 2022;
·email attaching further orders made on 24 July 2024 by Registrar Downing;
·email attaching timetabling orders made in Chambers on 6 June 2025; and
·email dated 11 August 2025 requesting appearances.
On 8 November 2022, Registrar Carney of this Court made procedural orders in the matter. These orders included that the applicants must file and serve written submissions, any amended application with proper particulars and any additional evidence at least 28 days before the hearing.
On 24 July 2024, Registrar Downing of this Court made orders that previous orders be vacated. Registrar Downing further ordered that the applicants file and serve any amended application, written submissions and additional evidence on or before 31 July 2024.
The applicant did not file any amended application, submissions or further material in compliance with these orders.
By orders of this Court on 6 June 2025, I ordered that the matter be listed for final hearing at 10.15am today (18 August 2025). I further ordered that the applicants file and serve any amended application properly particularising each ground of review relied upon, any affidavit evidence to be relied upon, a written outline of submissions and a bundle of authorities by 18 July 2025. No documents were filed by the applicants pursuant to this order.
The first respondent has communicated with the applicants’ lawyer since then for service of documents. No correspondence has been received by this Court from Mr Wong of A Quantum Leap Legal regarding filing and service of documents despite communications with him.
Today (18 August 2025), the day of the hearing, at 6.12 am, Mr Wong of A Quantum Leap Legal wrote to this Court. He stated as follows:
We write to clarify our position in the above matter. Our firm originally acted for the applicant when the matter was filed in 2022. Shortly after filing we were no longer retained by the applicant.
In December 2022, we served a notice of intention to cease acting, however the correspondence was returned to us. We subsequently served the notice by email but did not receive any response. Unfortunately, we overlooked filing a formal notice with the Court at that time.
We have now resent the notice of intention to the Applicant by email and have successfully communicated with the Applicant by mobile phone. The Applicant advised that they have engaged another solicitor. The contact details provided are as follows:
(details provided)
…
We have now filed a Notice of Ceasing to Act via the Court’s online filing system. This has also been communicated to the solicitor for the Respondent, who is copied in to this correspondence.
In the circumstances, we respectfully seek an adjournment of today’s hearing to allow the Applicant’s new solicitor sufficient time to file a notice of appearance.
On Sunday 17 August 2025 at 5.23 pm, Mr Wong attempted to file a Notice of Withdrawal.
Rule 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) provides:
9.03 Withdrawal as lawyer
(1)A lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal, in accordance with the approved form, and serving the notice on each other party.
(2)However, a lawyer may not file or serve a notice of withdrawal without leave of the Court unless the lawyer has, not less than 7 days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.
(3)A notice of intention to withdraw must be in accordance with the approved form.
(4) A lawyer may serve a notice of intention to withdraw on a party by:
(a)posting it to the residential or business address of the party last known to the lawyer; or
(b) emailing it to the email address of the party last known to the lawyer.
(5)If a party’s lawyer withdraws from the record, the party’s last known residential or business address is the address for service until:
(a) the party appoints another lawyer; or
(b) the party files a notice of address for service.
At my direction prior to the hearing this morning, after receipt of the 6:12am email from Mr Wong, my associate contacted Mr Wong and acknowledged receipt of his email. In her email, my associate drew his attention to rule 9.03(2) of the GFL Rules which she extracted. She advised Mr Wong that the matter would proceed for final hearing as scheduled at 10.15 am today (on 18 August 2025). She notified Mr Wong that at the hearing I would hear any application for leave to withdraw as well as hear the parties as to costs pursuant to rule 22.06 of the GFL Rules.
The solicitors for the first respondent advised the Court that they had corresponded with Mr Wong on the morning of the hearing and had recommended that he attend the hearing so that the Court could decide how best to proceed. The solicitors for the first respondent informed the Court that they had informed Mr Wong that they would be seeking costs thrown away as a result of the adjourned hearing and that they would seek an adjournment in relation to the issue of costs.
Mr Wong contacted the Court by email at 9.22am on 18 August 2025 and stated that he was unable to attend the hearing. He requested that the Court grant him leave to withdraw.
At 9:33am on 18 August 2025, upon my direction, my associate emailed Mr Wong inviting him to appear electronically by means of Webex should he wish to do so. The Webex link and dial in details were provided. Mr Wong has not joined the hearing using this link or dialing-in.
At the hearing today (18 August 2025) Mr Knuckey from HWL Ebsworth appears for the first respondent. Neither the applicant nor his representative, Mr Wong have appeared at the hearing scheduled at 10.15am. My associate called the matter three times outside the Court but there were no further appearances. At 10.45am there is still no appearance.
The following can be observed about the purported Notice of Withdrawal filed by Mr Wong yesterday. It was dated 17 August 2025. Contrary to rule 9.03(2) of the GFL Rules, the Notice of Withdrawal was not made in accordance with the approved form as it was not served on the client at least seven days before the date of filing (Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1159 per Given J). Unless leave is granted by the Court, the Notice of Withdrawal. is defective. Further, technically, in accordance with r 9.02(3) of the GFL Rules, the applicants are still represented by A Quantum Leap Legal.
In Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98 (Saleem) per Given J at [11], the court observed that a solicitor, in circumstances similar to this matter, remained the solicitor on record for the applicant despite purported withdrawal and had ongoing obligations. Reference was made in that decision (per Given J at [12]), to s 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) which is set out as follows:
190 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Section 191(1) of the Act relevantly provides that the parties to a civil proceeding before this Court must conduct the proceeding in a way that is consistent with its overarching purpose. Section 191(2) of the Act provides that a party’s lawyer must take account of the duty as stipulated in s 191(1) and assist the party to comply with that duty.
I note that in the emails sent by Mr Wong today there was no explanation for why he has not been acting for his client or why he has not responded to any communications from the Court and as to the non-compliance with the orders of this Court. There are three issues for the Court to deal with. The first is the application for leave to withdraw as a lawyer. The second is to ensure that processes are in place for the filing of an address for service and appointment of lawyer. The third issue is the application for adjournment and the settling of a timetable for a new hearing date, including in relation to costs.
In my orders I will grant leave for A Quantum Leap Legal to withdraw as the solicitors on record pursuant to r 9.03(2) of the GFL Rules. I will grant the adjournment and make orders for a directions hearing to set a new date for hearing and associated timetabling orders. I will make an order for filing and service of Notice of address for service. I will also make an order for submissions on costs pursuant to rule 22.06 of the GFL Rules which is an issue which will be heard on a different occasion. I will reserve the question of costs pursuant to rule 22.06. I note that there is no objection from the first respondent as to this course of action.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 18 August 2025
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