Ly v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 536
•11 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ly v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 536
File number(s): PEG 297 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 11 June 2024 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – parties provided proposed orders (not yet consented to by the Minister) – orders made in any event – application for an extension of time refused. Legislation: Migration Act 1958 (Cth), s 477 Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 11 June 2024 Place: Perth Counsel for the Applicants: Mr V Lo Solicitor for the Applicants: VL Legal Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 297 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHIEN QUYEN LY
First Applicant
THI THUY TRANG MAI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
11 JUNE 2024
THE COURT ORDERS THAT:
1.The application for an extension of time be refused.
2.The applicants pay the first respondent’s costs, fixed in the sum of $4,189.38.
3.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 before this Court for a hearing of the application for an extension of time at 2.30pm on 11 June 2024.
At the request of the parties, the Court made the following orders at that hearing:
1. The application for an extension of time be refused.
2. The applicants pay the first respondent’s costs, fixed in the sum of $4,189.38.
3. Written reasons for judgment to be published from Chambers at a later date.
These brief reasons for judgment are those referred to in order 3 above. They explain why the Court refused the application for an extension of time in this matter.
BACKGROUND
Before the Court is an application for judicial review filed in the Perth Registry of this Court on 12 December 2023 (the “application”). That application was accompanied by an affidavit which was affirmed by the first applicant on 12 December 2023 (and filed in this Court that same date).
In their application, the applicants sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 1 November 2023. As per s 477(1) of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 6 December 2023). That did not occur here. Rather, the application was filed six days outside of the requisite time period.
On 7 February 2024, orders were made by Registrar Downing of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 6 March 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a hearing of the application for an extension of time at 11.00am on 11 June 2024.
On 28 May 2024, my chambers advised the parties (via email) that the start time of the hearing had changed and that the hearing would instead commence at 2.30pm (on 11 June 2024).
When the matter came before this Court (on 11 June 2024), Mr Victor Lo (“Mr Lo”) appeared at the hearing of the extension of time application on behalf of the applicant. Ms Aatika Ismailjee (“Ms Ismailjee”) appeared on behalf of the first respondent (the “Minister”).
The parties advised the Court that they had proposed orders for the Court’s consideration. It was stressed, however, that the proposed orders had not, in fact, been signed by the Minister. Ms Ismailjee, for the Minister, explained that Mr Lo had only contacted her at 10.00am on the morning of the hearing to advise that the applicants no longer wished to proceed with their application and sought to agree on appropriate orders. The Court was advised that Ms Ismailjee’s office ultimately prepared proposed orders “refusing the extension of time” with costs awarded to the Minister, set at the scale amount. Ms Ismailjee sent those orders to Mr Lo for signature. Mr Lo agreed with that course of action and provided signed orders to Ms Ismailjee at approximately 1.00pm (an hour and a half prior to the hearing start time).
The Court was advised that, due to the late provision of the signed orders from Mr Lo, Ms Ismailjee was unable to get the orders signed prior to the hearing start time.
In circumstances where the applicants had been required to file written submissions four weeks prior to the interlocutory hearing but did not do so, it is unclear why the Court was not advised earlier that the applicants had determined not to proceed with the matter. There is a large backlog of migration matters in this Court. Had the Court been notified earlier, another matter could have been listed in place of one that was not going to proceed.
CONCLUSION
Although the approach ultimately adopted by the parties was somewhat unusual, the Court noted that both parties (both of whom were legally represented) had agreed to an approach requiring that “the application for an extension of time be refused”. In the circumstances, the Court made the orders proposed by the parties, as outlined at [2] above.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 13 June 2024
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