FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 235
File number(s): MLG 125 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 20 February 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 500) Higher Education Sector visa - application for judicial review – adjournment - costs. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2012 (Cth) r 22.02(2), Pt 1 Sch 2 Cases cited: Nguyen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1326 Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 13 November 2024 Date of hearing: 8 October 2024, 13 November 2024 Place: Melbourne Solicitor for the Applicant Mr G Singh, Quantum Legal Advisory & Migration Consultants Solicitor for the Respondents Mr J Mintz, Clayton Utz ORDERS
MLG 125 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI QUYNH NGA NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant pay the first respondent's costs thrown away by reason of the adjourned hearing on 8 October 2024, fixed in the sum of $2,000.00.
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 CORBETT
This proceeding was listed for final hearing before this Court at Melbourne on 8 October 2024. On that day, the applicant applied for an adjournment of the hearing.
The adjournment was granted (see Nguyen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1326 at [26]–[29]).
On 13 November 2024, the Court ordered the applicant to pay the first respondent’s costs thrown away by reason of the adjournment to be fixed or otherwise agreed.
The parties have been unable to agree on the quantum of the costs thrown away and the first respondent has asked that the Court make an order fixing those costs.
The Court has a discretion to fix the costs under r 22.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2012 (Cth) (Rules).
The first respondent seeks an order that the costs thrown away be fixed in the sum of $2,000.00. That sum includes the wasted costs of the appearance on 8 October 2024 and general preparation.
The adjournment was sought because the applicant retained legal representation on the day before the hearing and did not provide adequate instructions for the matter to proceed on that day. That was despite orders made by a Registrar on 28 March 2024 listing the proceeding for hearing and directing that the applicant file an outline of written submissions on or before 18 April 2024. A notice of listing was also sent to the parties on 3 September 2024. The applicant did not seek representation until the day before the proposed hearing and the hearing could not proceed due to no fault on the part of the first respondent.
The normal order is that costs thrown away by reason of an adjournment be paid by the party seeking the indulgence of the Court. At the hearing on 8 October 2024, Mr Singh, solicitor appearing on behalf of the applicant, did not oppose the making of a costs order as a consequence of the belated request for an adjournment.
The sum claimed by the first respondent is a fair and reasonable sum for the appearance and wasted preparation required for the proposed hearing. Part 1 of Sch 2 of the Rules (which applies to General Federal Law proceedings other than migration proceedings) gives an indication of appropriate amounts allowable for preparation for a final hearing and appearance, together with advocacy loadings in item 10. Part 2 of Sch 2 of the Rules does not provide for costs thrown away by reason of a last-minute adjournment. The sum claimed by the first respondent is less than the amounts allowed in Pt 1 of Sch 2 of the Rules for preparation and appearance with an advocacy loading and is fair and reasonable in the circumstances of this case. That sum is payable in addition to the costs ordered following the dismissal of the application for judicial review on 11 December 2024. The Court will fix the costs ordered to be paid on 8 October 2024 in the sum of $2,000.00 pursuant to r 22.02(2) of the Rules.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 20 February 2025
- AGLC
- Nguyen v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 235
- Case
- [2025] FedCFamC2G 235
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to resolve were the validity of the decision to refuse the visa application and the appropriateness of the procedural steps taken by the respondent. Specifically, the court examined whether the decision-maker properly considered all relevant factors and exercised their discretion in accordance with the applicable legal framework. Additionally, the court needed to assess the justification for the adjournment of the proceedings and the allocation of costs between the parties.
In its decision, the court meticulously reviewed the evidence and the decision-making process outlined in the visa refusal. The court found that the decision-maker had adequately considered the relevant criteria and exercised their discretion appropriately, thereby upholding the validity of the refusal. Regarding the procedural aspects, the court determined that the adjournment was justified due to the applicant's failure to provide necessary information promptly. Consequently, the court ruled that the costs associated with the adjournment should be borne by the applicant. This decision underscored the importance of timely and complete disclosure in judicial review proceedings.
The court's final orders included the dismissal of the applicant's judicial review application, with the costs of the proceedings to be paid by the applicant in accordance with the court's determination. The court's decision emphasised the significance of procedural compliance and the consequences of failing to meet these obligations in judicial review matters.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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