Patel v Minister for Immigration

[2015] FCCA 2611

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2611

Catchwords:
MIGRATION LAW – Applicant filing Notice of Discontinuance on day before trial – ruling on First Respondent’s Application for costs.

Legislation:

Federal Circuit Court Rules 2001

Applicant: KALPANABEN BABUBHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1002 of 2014

Judgment of: Judge Burchardt

Hearing date: 11 August 2015

Date of Last Submission: 25 August 2015

Delivered at: Melbourne

Delivered on: 6 October 2015

REPRESENTATION

The Applicant: In Person (via telephone link)

Counsel for the First Respondent: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’. 

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,416. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1002 of 2014

KALPANABEN BABUBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an argument solely about costs.  On 11 August 2015 I granted leave to the applicant to file a Notice of Discontinuance and set out a timetable for written submissions as to costs.  The application for leave to discontinue was not itself opposed, but the First Respondent has pressed its application for costs.  In order to understand that application, it is necessary to start with this court’s Rules and then proceed through the history of the matter.

2. Pursuant to r.13.01(2) of the Federal Circuit Court Rules 2001,

   
   

   a Notice of Discontinuance may be filed:

   a)at least 14 days before the day fixed for the final hearing of the application; or

   b)with the leave of the Court or a Registrar, at a later time.  

3. Pursuant to r.13.02, if a party discontinues an application, another party in the pleading may apply for costs.  That is, of course, what has occurred here, and the application was made forthwith upon the filing of the Notice of Discontinuance.

4. The history of the matter can be stated relatively briefly.  On 28 May 2014 the applicant filed an application seeking judicial review of

   
   

   a decision of the second respondent.  The grounds of application were:

   “I was misguided by my previous migration agent about the

   
   

   6 months Rule for applying visa application.  On compassionate grounds, please grant me an opportunity to prove my intention as Genuine Temporary Entrant.  Kindly grant me a new student visa that will help me achieve my career goal and meet my parents’ expectations.”

5. An affidavit filed contemporaneously with the application repeats that and, effectively, appends the decision of the Migration Review Tribunal.  That decision, dated 7 May 2014, affirmed a decision of

   
   

   a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC ) visa. 

6. Following the filing of the First Respondent’s response, Registrar Allaway made orders by consent on 19 August 2014 to progress the matter to trial, and the matter was listed for a show cause hearing on 20 March 2015.  On 18 March 2015, by consent, the then extant timetable was varied so that the show cause hearing was listed on 27 April 2015.  That date was itself later, by consent, altered to 11 August 2015. 

7. Thereafter, nothing further happened until the applicant filed her Notice of Discontinuance on 10 August 2015, the day before the posited show cause hearing.

8. The correspondence filed reveals that on 10 August 2015, at 12.40 pm, the Applicant contacted the Victoria Registry of the Federal Court and spoke to Deb Mountney.  Ms Mountney’s email to my associate dated 12.40 pm shows that Ms Patel had called her and that “she is wanting to discontinue her matter as she now has permanent residency. 
   She has a show cause hearing tomorrow”.

9. The email from Ms Mountney to my associate revealed the Applicant’s phone number.  My associate was successful in contacting the Applicant by phone and she was both informed that she had to appear on the following day and that she would be permitted to appear by telephone.

10. When the matter was called on, nothing of any moment occurred, save that the leave to discontinue was granted unopposed and the Minister foreshadowed seeking costs and, as I earlier indicated, I made the timetable for written submission.

11. The reality is that this is a short point.  The Applicant’s failure to obtain a successful result from the Tribunal was, in my view, inevitable.  The grounds of her application and the decision of the Tribunal do not suggest that the Tribunal fell into jurisdictional error. 

12. The truth is that the Applicant was obviously in the process of seeking permanent residency and ultimately was successful in doing so.  The Applicant was granted several adjournments (there is nothing in the material forwarded to the Court to show what the reason for the adjournments was – they were simply effected by consent of the parties) and the Applicant has never sought a more general adjournment to await the outcome of her application for permanent residency.

13. In the circumstances, the fact that the First Respondent has been put to the costs of the proceeding has not occurred through any fault whatever of the First Respondent, but, rather, has wholly been necessitated by the unmeritorious application pressed until the day before trial by the Applicant. 

14. In all the circumstances, there is no valid reason not to make an order for costs in favour of the First Respondent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 6 October 2015