Lin v Minister for Immigration and Border Protection

[2017] FCA 1022

FEDERAL COURT OF AUSTRALIA

Lin v Minister for Immigration and Border Protection (No 2) [2017]

FCA 1022

File number:

VID 245 of 2016

Judge:

GRIFFITHS J

Date of judgment:

29 August 2017

Catchwords:

COSTS – whether provisional order requiring costs to follow the outcome should be confirmed

Held: provisional costs order confirmed

Date of hearing:

Determined on the papers

Date of last submissions:

24 August 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Clayton Utz

ORDERS

VID 245 of 2016

BETWEEN:

YIN LIN
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	29 AUGUST 2017

THE COURT ORDERS THAT:

1.Order 2 dated 10 August 2017 is confirmed, with the consequence that the applicant must pay the first respondent’s costs of and incidental to the interlocutory application dated 21 March 2016. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1. Judgment in this matter was delivered on 10 August 2017 (see Lin v Minister for Immigration and Border Protection [2017] FCA 926 (Lin No 1).  A provisional costs order was made on the basis of the general rule that costs follow the outcome.  Allowance was made, however, for the parties to file brief written submissions concerning the provisional costs order.  The parties were informed that any contest on the issue of costs would then be determined on the papers. 

2. On 10 August 2017 and after the Court had made orders as set out in Lin No 1, the applicant sent an email at 4.11 pm, addressed to my associate, a member of the Registry and the Minister’s solicitor, in which she asked that an attachment to her email be forwarded to the Department and the Judge.  The attachment comprised a brief submission and an accompanying medical certificate.  The submission was in the following terms (without alteration):

   This is Ying lin.  I am really sorry for today.  The hearing is extremely important for me, i must be very good for it.  I can only make it horrible worse on my current tight brain.  I have to have some rest first and also wait for the agent’s new and legislation.  Please also find my medical letter attached.  Thank you really much

3. The medical certificate was dated 10 August 2017 and was completed by Dr Christine Vi Pham from the St James Avenue Medical Centre in Springvale in Victoria.  The handwritten text of the certificate was in the following terms (without alteration):

   This is to certify that Ms Lin has anxiety, stress, mood swings, personality changes – getting angry easily + more forgetfull.  She will benefit from going back to see her parents/family for a few months for mental health support.

4. On 21 August 2017, following receipt of an email earlier that day from the applicant inquiring about her matter, my associate sent an email to the applicant, copied to the Minister’s solicitor, in which she confirmed a telephone conversation which she had had with the applicant on that day in which the applicant was understood to say that the applicant’s letter and doctor’s certificate constituted her submission on the issue of costs. 

5. By email dated 24 August 2017, the Minister’s solicitor stated that the Minister did not see any reason to file submissions in respect of the issue of costs having regard to the contents of the applicant’s letter dated 10 August 2017 and the attached medical certificate, which did not address the issue of costs.  Accordingly, the Minister confirmed his position that costs should follow the outcome. 

6. The applicant has advanced no reason why she should not bear the first respondent’s costs of and incidental to the interlocutory application dated 21 March 2016.  Accordingly, order 2 dated 10 August 2017 is now confirmed, with the consequence that the applicant must pay the first respondent’s costs of and incidental to the interlocutory application dated 21 March 2016. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:        29 August 2017