Latif v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 638
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Latif v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 638
File number: MLG 930 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 19 July 2023 Catchwords: MIGRATION – Temporary Work (Skilled) visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – applicant sought to withdraw his application less than 30 minutes prior to hearing – leave granted for applicant to discontinue application – costs awarded to the Minister. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.01(2)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 19 July 2023 Place: Perth Counsel for the Applicant: Mr I Warraich Solicitor for the Applicant: HUK Legal Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 930 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARSHAD LATIF
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
19 JULY 2023
THE COURT ORDERS THAT:
1.The applicant’s representative have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The applicant is granted leave to discontinue his application, and the need for the filing of any further documents to give effect to this is dispensed with.
4.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
5.Written reasons for judgment to 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 KENDALL:
INTRODUCTION
This matter was listed for a final hearing before this Court at 1.00pm on 19 July 2023. When the matter came before the Court, Mr Warraich (who appeared on behalf of the applicant via video link) confirmed that the applicant wished to discontinue his application.
In the circumstances, the Court made the following orders:
1.The applicant’s representative have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The applicant is granted leave to discontinue his application, and the need for the filing of any further documents to give effect to this is dispensed with.
4. The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court proceeded as it did.
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of this Court on 6 May 2021 (the “application”). That application was accompanied by an affidavit which was affirmed by the first applicant on 6 May 2021.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal on 6 April 2021.
On 3 November 2021, orders were made by Registrar van der Westhuizen in this Court programming the matter to a final hearing “on a date to be advised”. Those orders also gave the applicant an opportunity to file any amended application, any affidavits or a supplementary court book and written submissions.
Later that day (also on 3 November 2021), a notice of address for service was filed on behalf of the applicant by Mr Warraich.
On 31 October 2022, orders were made by Registrar van der Westhuizen transferring the proceeding to the Perth Registry of this Court.
On 8 November 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing at 11.00am on 19 July 2023.
On 13 July 2023, the parties were notified that the time of the hearing had changed and that the hearing would now commence at 1.00pm (on 19 July 2023). Noting that no further materials had been filed on behalf of the applicant, Mr Warraich was also asked, in that correspondence, if any further materials would be filed on behalf of the applicant. No response was forthcoming.
On 14 July 2023, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for an “in person” attendance (by Ms Ellis on behalf of the first respondent (the “Minister”) and an appearance by Microsoft Teams (by Mr Warraich on behalf of the applicant).
At 12.32pm on 19 July 2023, my chambers received an email from Mr Warraich as follows;
Dear Associate,
I have just been instructed by the Applicant that he wants to withdraw this matter. In this situation, please advise.
Anyway I am attending the hearing at 1 pm.
My chambers advised the parties that this issue would be discussed at the hearing.
The correspondence from Mr Warraich (set out above) was tendered at the hearing and referenced as Exhibit 1.
As outlined above, when the matter came before this Court (on 19 July 2023), Mr Warraich appeared (via video link) on behalf of the applicant. Ms Ellis appeared (in person) on behalf of the Minister.
Mr Warraich confirmed to the Court that the applicant wished to discontinue his proceeding and that Mr Warraich had explained to him the potential costs implications of doing so.
Noting that a notice of discontinuance cannot be filed less than 14 days prior to a final hearing without leave of the Court (as set out in r 13.01(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), the Court asked Ms Ellis how the Minister wished to proceed.
Ms Ellis told the Court that the Minister did not object to the applicant being granted leave to discontinue the proceeding and sought the Minister’s costs, fixed in the sum of $6,500. Ms Ellis acknowledged that this amount was slightly higher than the fixed scale amount that the Minister was entitled to (being $5,859.80) but submitted that, in the circumstances of the matter, the Minister considered that a higher amount was warranted.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. No communication was received from the applicant or Mr Warraich until less than 30 minutes prior to the scheduled hearing time. The Minister had filed detailed written submissions and Ms Ellis was prepared to make oral submissions as required by the Court in relation to the substantive application.
CONCLUSION
In the circumstances, the Court made orders granting the applicant leave to discontinue the proceeding and awarded costs to the Minister, as outlined at [2] above.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 July 2023
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