Ji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 238
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 238
File number(s): MLG 216 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 5 April 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of China – Subclass 820 Class UK Partner visa – request to discontinue proceedings
PRACTICE AND PROCEDURE – request to discontinue proceedings – requirements of overarching civil practice and procedure provisions – whether to grant leave to discontinue proceedings
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07(1); 13.01(1); 29.13; Sch 2, Pt 2, Div 1, Item 3
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Bunnag v Minister for Immigration (No 2) [2008] FMCA 430
CBV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 184
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
WZATK v Minister for Immigration and Border Protection [2014] FCA 1174
WZATK v Minister for Immigration and Border Protection [2015] HCASL 41
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 1 April 2022 Place: Perth Applicant: In person with the assistance of a Mandarin interpreter Counsel for the First Respondent: Mr A Cunynghame Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 216 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YULAN JI
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:
1 APRIL 2022
THE COURT ORDERS THAT:
1.Pursuant to rule 13.03(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Applicant be granted leave to discontinue the originating application filed 29 January 2018, dispensing with the requirement to file a Notice of Discontinuance pursuant to rule 1.07(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.
The Applicant pay the First Respondent’s costs in the sum of $7,853 by
1 October 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 1 April 2022 the Court made orders in this matter in the following terms:
1.Pursuant to rule 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Applicant be granted leave to discontinue the Originating Application filed 29 January 2018, dispensing with the requirement to file a Notice of Discontinuance pursuant to rule 1.07(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Applicant pay the First Respondent’s costs in the sum of $7853 by
1 October 2022.
3.Short written Reasons for Judgment be published from Chambers at a later date.
These are the Reasons for Judgment referred to in Order 3 above.
JUDICIAL REVIEW APPLICATION
This is an application filed on 29 January 2018 by the applicant, Ms Yulan Ji (“Ms Ji”) seeking judicial review (“ Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of an 8 January 2018 decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively). The Tribunal Decision affirmed the decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse Ms Ji a Partner (Temporary) Class UK (Subclass 820) visa (“Partner Visa”).
The Judicial Review Application filed on 29 January 2018 was filed in the Melbourne Registry of the Court (then styled the Federal Circuit Court of Australia). By order of a Registrar of the Court on 14 November 2018 the matter was to be listed before a Judge in the Melbourne Registry for hearing on a date to be advised. No date for a hearing before a Judge in the Melbourne Registry was ever advised to the parties. As is well known and acknowledged, there have been significant delays in bringing to hearing before a Judge of this Court migration judicial review matters filed in the Melbourne Registry of this Court: see, for example, AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren, and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7]-[11] per Judge Lucev.
Because of the delays in hearing migration judicial review matters in the Melbourne Registry of this Court the matter was transferred in November 2021 to the Perth Registry for hearing by a Perth Judge. At a directions hearing on 15 November 2021, at which Ms Ji did not appear:
(a)the Court ordered that
(i)Ms Ji file and serve any amended Judicial Review Application, affidavits, a supplementary Court book (if any), and written submissions by 28 December 2021; and
(ii)the Minister file and serve written submissions and any affidavits by 25 January 2022; and
(b)the matter was listed for final hearing on 22 February 2022.
Ms Ji did not file any documents as ordered by the 15 November 2021 orders, or at all. The Minister filed an outline of submissions and an affidavit in accordance with the 15 November 2021 orders, and subsequently filed a list of authorities.
Ms Ji appeared, with the assistance of an interpreter, at the final hearing on 22 February 2022, as did a lawyer, Mr Swan, for the Minister. After the Court had explained the process and the nature of jurisdictional error to her: Transcript, pp 3-4, Ms Ji made brief submissions: Transcript, pp 4-5, and sought an adjournment on the basis that she had requested legal advice and was disadvantaged because of the language barrier: Transcript, p 5. The Court refused the application for an adjournment instanter, indicating that the Judicial Review Application had been on foot for some time, Ms Ji had been notified of the final hearing, there was no right to a lawyer in the proceedings in any event, and that the Court would expand upon the reasons for adjournment in any written Reasons for Judgment in relation to the Judicial Review Application: Transcript, p 5. The Court then invited Mr Swan to make oral submissions: Transcript, p 5. Ms Ji then requested that a support worker be able to join the hearing to hear the oral submissions made on behalf of the Minister, but when the Court enquired as to whether the support worker was available, Ms Ji advised that the support worker was currently working in their office: Transcript, pp 5-6. The Court indicated that Ms Ji could listen to the oral submissions made on behalf of the Minister, and that Ms Ji would be provided with an opportunity to respond in writing: Transcript, p 6. The Minister made brief oral submissions, and indicated that reliance was otherwise placed upon the written submissions previously filed: Transcript, p 6. The Court then made the following orders:
1.The Applicant file and serve written submissions in reply to the Minister’s written and oral submissions by 22 March 2022.
2.
The First Respondent file and serve any written submissions in reply to the submissions in Order 1 insofar only as those submissions raise any new matters by
5 April 2022.
3.On receipt of the written submission in Order 2, the matter stand reserved for judgment.
4.Costs of today be reserved.
Ms Ji did not file and serve written submissions in reply to the Minister’s written and oral submissions by 22 March 2022, or at all.
It would appear that on 25 March 2022 Ms Ji attempted to file a Notice of Discontinuance in the Melbourne Registry, but that the Notice of Discontinuance was rejected for filing by the Melbourne Registry for technical reasons. The Court notes that the Notice of Discontinuance was forwarded to the Court under cover of an email from a social worker/case manager who was seemingly assisting Ms Ji. Ms Ji was invited to file another Notice of Discontinuance remedying the technical deficiencies, and on 29 March 2022 sought to do so. At this stage, the matter was brought to the attention of the Chambers of the presiding judge, and in circumstances where Ms Ji, as applicant, was endeavouring to discontinue the Judicial Review Application which had been the subject of a final hearing and further orders for the filing of submissions by Ms Ji post final hearing, the Court listed the matter for a directions hearing on 1 April 2022, with the filing of the Notice of Discontinuance pended pending the directions hearing.
The Court notes that the Notice of Discontinuance sought to be filed by Ms Ji seeks to discontinue in respect of all of the orders sought in the Judicial Review Application. At the directions hearing Ms Ji, who appeared with the assistance of an interpreter confirmed that she sought to discontinue the Judicial Review Application in its entirety. Ms Ji explained that she had been unable to obtain a lawyer to appear for these proceedings, but that she had received advice from a solicitor, who had taken advice from a barrister, and that advice was that the Judicial Review Application had no prospect of success. Ms Ji further explained that she had approached other lawyers subsequently, but that they had declined to act for her in circumstances where the time for compliance by Ms Ji with the Court orders of 22 February 2022 was, by the time of Ms Ji’s approach, a matter of days away. The Court makes two observations. First, that there is no right to legal representation in migration judicial review proceedings in this Court, a view expressed on many, many occasions in this Court and the Federal Court, and see most recently CBV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 184 at [44] per Judge Lucev (and cases there cited). Second, the advice that the Judicial Review Application had no prospect of success was sage.
In relation to the request for discontinuance of the Judicial Review Application, the Court suggested, and there was no objection, that the appropriate course was to grant Ms Ji leave to discontinue the Judicial Review Application, pursuant to r 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”), and pursuant to r 1.07(1) of the GFL Rules to dispense with the requirement to file a Notice of Discontinuance.
Given:
(a)the submissions made by Ms Ji and the Minister;
(b)the fact that discontinuance of the Judicial Review Application will obviate the necessity for a busy first instance hearing Court to prepare and publish detailed Reasons for Judgment in relation to the Judicial Review Application;
(c)the over-arching civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which, reduced to their essence, require the Court to consider:
(i)whether what it proposes might facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible; and
(ii)to avoid undue delay, expense, and technicality; and
(d)that discontinuance of the Judicial Review Application would, in the circumstances, be consistent with the intention of the overarching civil practice and procedure provisions cited in the preceding subparagraph,
the Court considers it is appropriate in the circumstances to make an order in the terms outlined in the preceding paragraph.
COSTS
The Minister sought costs in the amount of $7853. This is the amount set out in Item 3 of Div 1 of Pt 2 of Sch 2 to the GFL Rules for a proceeding concluded at a final hearing. This is the appropriate costs item for this matter where Ms Ji seeks to discontinue after a final hearing, and after time for compliance with orders made for, amongst other things, the filing of further submissions has passed by without compliance.
Generally, costs follow the event and an unsuccessful or discontinuing party in litigation of this type pays the other party’s costs: 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 not making an order for the Minister’s costs to be paid by Ms Ji.
An order for costs to be paid by Ms Ji to the Minister in the amount sought by the Minister is therefore to be made, and the Court will allow six months to pay having regard to what Ms Ji had to say concerning her present financial circumstances.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 5 April 2022
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