Liu v Minister for Immigration and Anor (No.2)

[2019] FCCA 2442

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 2442

Catchwords:
MIGRATION – COSTS – whether costs ordered against the applicant should be paid by instalments – no order made that costs be paid by instalments.

Legislation:

Federal Circuit Court Rules 2001 (Cth), pt.3, Sch.1

Applicant: YUJIA LIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 391 of 2016

Judgment of: Judge Manousaridis

Hearing date: Decided on the papers

Date of Last Submission: 20 August 2019

Delivered at: Sydney

Delivered on: 30 August 2019

REPRESENTATION

Counsel for the Applicant: Mr L Karp & Mr G Schipp

Solicitors for the Applicant: Australian United Lawyers

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The costs the applicant was ordered to pay on 14 June 2019 are set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 391 of 2016

YUJIA LIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 14 June 2019 I ordered that the application be dismissed, and that the applicant pay the first respondent’s costs as agreed or assessed by the Court on the parties exercising a liberty to apply I granted for that purpose.

2. By email sent to my associate on 14 August 2019 Mr Gao, the lawyer for the first respondent (Minister), said that the parties have been unable to agree on the amount for which costs should be assessed. The email foreshadowed the Minister would be applying for an order that the Court assess his costs in the amount of $6,000. That is less than the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

3. After Mr Gao’s email was brought to my attention I directed my associate to send an email to the parties enquiring whether they proposed that I hear oral argument on the question of the assessment of costs or instead they would be content for me to assess costs on the papers in chambers. An email to that effect was sent to the parties on 14 August 2019. Mr Gao responded by stating that the Minister’s preference was that I decide the question of costs on the papers. The lawyer for the applicant responded by requesting further time to provide a response. I permitted the applicant further time, subject to any objection by the Minister. Mr Gao sent an email stating the Minister did not object to the applicant being given further time.

4. On 20 August 2019 the lawyer for the applicant sent to my associate (copied to Mr Gao) the following email:

   On 16 August 2019, upon receiving our client’s instruction, we have sent an email to the First Respondent's solicitor proposing to enter into the Consent Oder [sic] with the First Respondent on the following terms:

   “Our client consents to pay the first respondent the cost referred to in the Order 2 of Court Order dated 14 June 2019 in the fix amount of $ 6,000 by way of twelve (12) monthly instalments of $ 500, with the first such payments to be made on 1^st September 2019, and on the same day of each month thereafter until paid in full.”

   On 19 August 2019, we have received the email from the First Response's [sic] solicitor stating that the Minister does not consent to the above proposed terms.

   Our client further instructs us that she cannot afford to make a payment of $6,000 in full due to her financial circumstance. She has exhausted her savings as she has not been in employment for an extended period. She has returned to China because she cannot afford to pay for the living expenses in Australia.

   Our client has consented to leave with the Court in deciding on how to proceed on the issue of whether the cost matter shall be heard orally in the Court or assessed on the papers in Chambers by his Honour.

   The content of this email has already been provided to the first respondent’s solicitor and is now copied into this email.

5. Given this exchange of correspondence, I am of the opinion it is appropriate that I consider the question of costs on the papers.

6. The applicant does not claim it is unreasonable to set the amount of the Minister’s costs at $6,000; and I am of the opinion that $6,000 is a reasonable amount for which the Minister’s costs should be set. The question is whether I should order that the applicant pay that amount by instalments.

7. I am not persuaded that I should make any such order. First, the applicant has not provided any evidence to support the assertion that she cannot pay the costs other than by instalments. Second, it is open to the applicant to attempt to enter into an agreement with the Minister that the costs I may order be paid by instalments. Third, I have some doubt whether I have the power to order that the costs be paid by instalments. Even if I did have such power, however, I would not in the circumstances of this case order that the applicant pay the Minister’s cost by instalments.

8. I propose, therefore, simply to order that the Minister’s costs be set in the amount of $6,000, and make no order that those costs be paid by instalments.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 30 August 2019