FBO17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1211
•5 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FBO17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1211
File number(s): SYG 3556 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 5 November 2024 Catchwords: MIGRATION – Discontinuance at final hearing – costs where discontinuance takes place in Court during final hearing Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 13.01
Division: General Federal Law Number of paragraphs: 19 Date of hearing: 5 November 2024 Place: Sydney Solicitor for the Applicant: In person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 3556 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FBO17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
5 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
BY CONSENT, THE COURT ORDERS THAT:
2.Leave is granted to the applicant to discontinue the application made pursuant to s 476 of the Migration Act 1958 (Cth) on 20 November 2017 (application).
3.Pursuant to r 1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the requirement that the applicant file a Notice of Discontinuance in relation to the application pursuant to r 13.01 of the Rules, is dispensed with.
4.The applicant must pay the first respondent’s costs of and incidental to the proceedings, fixed in the sum of $5,859.80.
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:
Before the Court is an application seeking review of a decision of the Immigration Assessment Authority (Authority) made on 23 October 2017, which affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise visa (visa).
PROCEDURAL BACKGROUND
These proceedings were commenced by an application made pursuant to s 476 of the Migration Act 1958 (Cth) (Act) on 20 November 2017, at which time the applicant was unrepresented. The proceedings were initially docketed to a different Judge of this Court (first primary Judge) and, on 14 December 2017, a Registrar made orders by consent which (inter alia) listed the proceedings for a callover before the first primary Judge and granted leave to the applicant to file and serve any amended application by 29 March 2018. No amended application was filed by the applicant in accordance with that grant of leave.
On 7 July 2021, a Notice of Address for Service was filed by the applicant which had the effect of updating both his postal address and email addresses for service. On 12 December 2023 the applicant failed to appear at a callover before a Registrar of the Court, and orders were made adjourning the matter for either a directions hearing or a callover on a date to be fixed. On 18 March 2024, the applicant appeared (by telephone) before a Registrar of the Court. The applicant was assisted by an interpreter in the Tamil language and the Minister was represented by his solicitor. On that occasion, orders were made for the application to be listed before a different Judge of the Court (second primary Judge) for hearing on a date to be fixed, for the applicant to file and serve any written submissions and any amended application at least 28 days in advance of the hearing and for the first respondent to file and serve written submissions at least 14 days before the any allocated hearing date.
On 18 June 2024, a further Notice of Address for Service was filed for the applicant, which had the effect of appointing a solicitor as his legal representative. On 26 July 2024, the second primary Judge made the following orders in Chambers, by consent:
1. The hearing on 20 August 2024 be vacated.
2. The matter be listed for a final hearing on a date and time to be advised.
3.The applicant file and serve written submissions, any amended application and evidence presented by way of affidavits at least 28 days before the hearing.
4. The first respondent file and serve any written submissions at least 14 days before the hearing.
Despite the aforementioned grant of leave, and the indication in the originating application that the applicant would advance new grounds of review once he was legally represented (or at least particulars of the alleged error/s) no amended application was forthcoming.
On 4 September 2024, the matter was docketed to me and I made orders on that date which (inter alia) listed the proceedings for final hearing before me at 10:15am today provided a further grant of leave to the applicant to file and serve any amended application by 8 October 2024. The parties were also ordered to file and serve a written outline of submission 14 and 7 days prior to the hearing (respectively).
On 10 October 2024, the applicant’s solicitor filed a Notice of Withdrawal of Lawyer (withdrawal notice), which provided the applicant’s last known residential address and contact details (as set out in the Notice of Intention to Withdraw annexed thereto). Once my Chambers became aware of the withdrawal notice, an interpreter in the Tamil language was arranged to be present at the hearing scheduled for 5 November 2024.
On 4 November 2024, my Chambers received email correspondence from the applicant requesting leave to appear at today's hearing remotely. That request was accompanied by a medical certificate which indicated that the applicant had a leg injury and was therefore unable to travel to Court. I acceded to the application and the applicant has this morning appeared before me using the Microsoft Teams platform.
EVENTS AT HEARING
The applicant was assisted throughout the hearing on 5 November 2024 by an interpreter in the Tamil language. The Minister was represented by Counsel. The applicant confirmed to me at the beginning of the hearing that he had no difficulty in understanding the interpreter. The connection to the Microsoft Teams forum has been clear throughout, and I am satisfied that neither the applicant, the Minister’s Counsel nor the Court have had any difficulty in understanding one another, including through the interpreter.
At the commencement of the hearing, I explained to the applicant the limitations on the role of the Court in judicial review. I identified the relevant documents which are on the Court file, and the Court Book was tendered for the Minister and marked as Exhibit “1R”.
Upon turning to deal with the applicant’s grounds as contained in the originating application, the applicant explained that his lawyer had told him his application lacked a reasonable prospect of success.
The Court enquired of the applicant the reason why he was conveying this information, given it was presumed that, having sought leave to appear by MS Teams at hearing, the applicant wished to continue his case. The applicant was invited to tell the Court what errors he contended are present in the Authority’s decision, to which the applicant responded “No, no, no.”.[1] The Court asked whether the applicant was indicating by this that he did not wish to continue with his case and he said he did not. Following the above exchange, the Court asked Counsel for the Minister whether there would be utility in a brief adjournment to enable a discussion between the parties as to what might be the way to bring the proceedings to a conclusion. Counsel for the Minister responded that he did not think he or his instructor had “anything to say to the applicant”.[2]
[1] Transcript 5 November 2024 (Transcript) at T5.37
[2] Transcript at T6.10
Accordingly, the Court discussed with the applicant the mechanisms by which the proceedings could conclude (namely, whether by dismissal or discontinuance). The applicant said that he wished to discontinue his application. The Court explained, and reiterated, that by doing so the applicant would have a costs exposure. The applicant acknowledged he understood.
In circumstances where the applicant has quite clearly expressed the intention to discontinue the proceedings, I am satisfied that it is appropriate to give him leave to do so. I will dispense with the need for him to file a Notice of Discontinuance pursuant to r 13.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), by reference to r 1.07 of the Rules.
CONCLUSION
Consequent upon my indication that I was prepared to grant leave to the applicant to discontinue in Court, Counsel for the Minister sought a fixed costs order under Schedule 2, Part 2, Division 2, item 4 of the Rules (discontinuance scale), being the item for a discontinuance, essentially which takes place less than 14 days before the hearing. Given that we are in the midst of the final hearing, we are very much in the realm of item 4.
It would arguably have been open to the Minister to continue to seek the scale costs amount for a proceeding which concluded at final hearing, given that the parties have attended today and the steps taken in these proceedings are essentially now no different that if the matter had been fully heard today. However, the Minister has commendably and quite generously elected to proceed under the discontinuance scale.
Rule 29.13 of the Rules provides as follows:
Costs
(1) The Court may, in relation to a proceeding that is concluded, order an unsuccessful party to the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2.
(2) If:
(a) the applicant files a notice of discontinuance in a proceeding in which a respondent has sought costs in the response; and
(b) the applicant does not file with the notice an application in respect of costs;
a Judge or a Registrar may, without hearing the parties, make an order in chambers in accordance with Division 2 of Part 2 of Schedule 2 for the costs of the respondent.
(3) This rule does not limit a party's right to apply, under Part 22, for an order as to costs of the application.
Note 1: See Division 13.1 of these Rules in relation to discontinuance.
Note 2: See section 136 of the Act in relation to the exercise of jurisdiction in chambers.
Rule 29.13 of the Rules provides a default, permissive power the Court to deal with costs in chambers upon a discontinuance. However, there is no need to revert to that power in circumstances where the parties are before the Court and the Minister makes the costs application instanter. When asked what he wished to say about costs, the applicant voluntarily proffered his consent to the costs order in the amount sought. Had he not done so, and within the exercise of my discretion, I would have been satisfied (particularly having regard to my comments at [15] to [16] above) that the amount sought was reasonable in all the circumstances of this case.
Leave will be granted to the applicant to discontinue today without the need to take further steps to give effect to it and I am satisfied that a costs order should be made in the fixed amount of $5,859.80. I will so order, by consent.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 14 November 2024
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