Egc17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 30
•28 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 30
File number(s): MLG 2032 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 28 January 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizens of Malaysia – proposed grounds of review – application for extension of time withdrawn at hearing – application for extension of time dismissed.
COSTS – General rule – where application withdrawn at hearing – where applicant submits hardship.
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.29.13, Sch.2
Migration Act 1958 (Cth), ss.476, 477Cases cited: Bunnag v Minister for Immigration (No 2) [2008] FMCA 430
BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726
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: 9 Date of last submission/s: 27 January 2022 Date of hearing: 27 January 2022 Place: Perth The First Applicant: Appeared in person (via CISCO Webex with the assistance of a Malaysian interpreter) The Second Applicant: Appeared in person (via CISCO Webex with the assistance of a Malaysian interpreter) Counsel for the First Respondent: Ms G. Ellis Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2032 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGC17
First Applicant
EGD17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.The Applicants’ application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to file an application under s 476 of the Migration Act 1958 (Cth) be dismissed.
2.The Applicants be jointly and severally liable to pay the First Respondent’s costs in the sum of $5,000 by 27 February 2022.
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 21 September 2017 the applicants, EGC17 and EGD17, lodged in the Melbourne Registry of the Court, an application for an extension of time, pursuant to s 477 of the Migration Act 1958 (Cth) (“Migration Act”), (“Extension of Time Application”) in which to file an application for judicial review pursuant to s 476 of the Migration Act (“Proposed Judicial Review Application”). The Proposed Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 15 May 2017. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the applicants Protection (Class XA) (Subclass 866) visas (“Protection Visas”).
The applicants, EGC17 and EGD17, are a mother and son respectively.
When the matter was called for hearing on 27 January 2022, the Court explained to EGC17 and EGD17 the types of issues that they would be required to address in relation to the Extension of Time Application, and, if necessary, the Proposed Judicial Review Application. Thereupon, EGD17 advised the Court that EGC17 had considered her position and did not wish to proceed with the Extension of Time Application. The Court indicated to EGC17 and EGD17 that if the Extension of Time Application was not proceeded with then the Proposed Judicial Review Application must fail and that they must pay the Minister’s costs, and they both indicated to the Court that this was understood. The Court sought and obtained confirmation from EGD17 that he too did not wish to proceed with the Extension of Time Application.
The Court, therefore, made an order that the Extension of Time Application be dismissed.
Due to the dismissal of the Extension of Time Application, it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83; at [43] per Foster J; WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [34] per Judge Lucev.
In relation to costs, the Minister sought a sum of $5,000. The question of costs was put to EGC17 and EGD17, and EGD17 made submissions that as EGC17 and EGD17 had no work rights they would be unable to pay costs.
Generally, costs follow the event and, therefore, an unsuccessful party in litigation of this type pays the successful party's costs: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“FCFCOA 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 EGC17 and EGD17.
The Court, therefore, made an order that EGC17 and EGD17 be jointly and severally liable for the payment of the Minister costs, by 27 February 2022, in the sum of $5,000, which is less than the amount that the Minister is entitled to claim pursuant to Sch 2 of the FCFCOA GFL Rules.
The Court also made an order that short written Reasons for Judgment be published from Chambers at a later date. These are those Reasons for Judgment.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 28 January 2022
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