Eic17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 74
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 74
File number(s): MLG 2079 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 10 February 2022 Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Application for judicial review of Administrative Appeals Tribunal decision – applicant self-represented but claimed to have received legal advice to discontinue his application – oral request to discontinue application made at final hearing – potential consequences of discontinuance explained to applicant – leave granted to discontinue judicial review application. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 10 February 2022 The Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms M Richardson of Sparke Helmore Lawyers ORDERS
MLG 2079 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS BY CONSENT THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.Pursuant to rule 13.01(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the applicant is granted leave to discontinue his application.
3.Pursuant to rule 1.07(1) of the Rules, the requirement of rule 13.01(1) of the Rules to file a notice of discontinuance is hereby dispensed with.
4.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
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 GIVEN:
By an application to show cause filed with this Court on 27 September 2017, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 August 2017 affirming a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant, by orders made by consent in 2018, was given an opportunity to amend that application but did not avail himself of that opportunity. In December of last year, the matter was brought into my docket and listed for hearing before me today.
The applicant appeared before me this afternoon via the Microsoft Teams platform with the assistance of a Malay interpreter. The Minister was represented by a solicitor. The connection appeared to be clear and without any technical difficulties. The parties and the interpreter did not appear to have any difficulty in understanding one another, or engaging with the Court.
The applicant has been unrepresented throughout the life of the proceedings. At the commencement of the hearing, I explained to the applicant the role of the Court and the limitations on my jurisdiction. I identified the documents that I had before me and the Court Book was received into evidence and marked “Exhibit 1R”.
When it came time to examine the grounds of review raised by the applicant in his application, I was summarising these for his benefit via the interpreter when I reached ground 4 of the grounds of review. I observed to the applicant that ground 4 appeared to be a merits-based claim which, aside from not being a matter for the Court, also appeared not to have been raised before the Tribunal. At that juncture, the applicant said that he did not know what information was in the application because it was prepared by his friend. The applicant said that he did not know what his friend had included and had told him to “take the application to the Court and just say you did it”.
The applicant went on to say that a few weeks ago he had retained a legal adviser, and that his legal adviser had told him to “put a case to the Federal Court”. When I observed that there was nothing before me to indicate that the applicant had in fact retained a lawyer, the applicant said that the lawyer was not able to come today but that they had spoken a few weeks ago and “this was the latest update”. The applicant said that the lawyer told him that he should come to Court today and say that he wished to withdraw his case. He said he was advised to do this because the application to the Tribunal and the application to the Court were not prepared by him. The applicant said that he only had a first name for the lawyer.
At that juncture, I explained to the applicant that while I was not able to give him legal advice my concerns were, in essence, threefold. The first being that I indicated to the applicant there would likely be consequences to his migration status if he were to discontinue the proceedings. The second concern that I had was the mechanism for withdrawal given that there are different options for ending a proceeding early, and the third was the costs consequences.
I also observed that while the Minister’s solicitor was also not required to give the applicant legal advice, she would be better placed (together with instructions from her client) to discuss with the applicant his intentions. Accordingly, I proposed to adjourn the matter for approximately 25 minutes to enable the solicitor for the Minister to speak to the principal of her firm if needed, to her instructing officer at the Department and then also to have any relevant discussions that she needed to have with the applicant in order to satisfy herself that all relevant matters had been explained to him. Accordingly I adjourned.
When the matter resumed shortly before 3:00 pm, the solicitor for the Minister summarised for me the position that had been agreed as between the parties.
In relation to the costs implications of the matter, I am informed that the solicitor for the Minister had discussed this with the applicant and indicated that irrespective of whether the matter proceeded by way of a discontinuance or by a dismissal, that the Minister would still be entitled to seek costs.
In relation to the applicant’s visa status, I am told that it was explained to the applicant as a likely consequence of his discontinuance of these proceedings his bridging visa would likely expire.
In terms of by which mechanism today’s matter could end early, I am informed that these were also discussed with the applicant but no consensus had yet been reached.
I am informed that the solicitor for the Minister indicated to the applicant that he could discontinue but that if he did so, while he would still be entitled to seek a reinstatement from the Court, given that he was present today and expressing his clear intention to discontinue, it was quite apparent that he was not being induced to discontinue either by duress or fraud and therefore, that reinstatement may be difficult. It was submitted to me that the alternative mechanism would be that I simply dismiss the proceedings and that this would be “cleaner”, and also the Minister’s preference.
I confirmed with the applicant that the summary given by the Minister’s solicitor was an accurate representation of what he and she had discussed during the adjournment. The applicant confirmed that this was so.
I again asked the applicant his preferred method of ending the proceedings. The applicant unequivocally said that he wished to “withdraw his case”. In those circumstances, I asked the solicitor for the Minister whether, given that that was the applicant’s very clear preference, the first respondent would consent to that occurring and she confirmed that she was content for the order to be made in those terms.
I then explained to the applicant the four orders that I was proposing to make today. Each was interpreted to him and he confirmed in respect of each of them that they were by consent. I note that this expressly included the costs order being fixed in the amount of $5,000.
Having confirmed with the applicant that he consented to each of these orders being made, I indicated that I would provide brief reasons for making the orders and that while he would later be given a copy of those reasons, the effect of the orders would be from today.
In all of the circumstances of this case, given the very clear intention of the applicant to discontinue the matter, I am prepared to grant him leave to do so. I am satisfied that the applicant understands that there are consequences in respect of that grant of leave, not only relating to costs, but also in relation to his visa status.
I acknowledge the assistance of the solicitor for the Minister in assisting the applicant today, in the true spirit of the model litigant obligation.
For the foregoing reasons I am satisfied that the matter can be discontinued and I note that I have explained to the applicant, as has the solicitor for the Minister, the potential obstacles that he would face if he were at some later stage to seek reinstatement of these proceedings, having voluntarily discontinued them today.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Dated: 16 February 2022
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