Qiao v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1339
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Qiao v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1339
File number: SYG 844 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 November 2024 Catchwords: MIGRATION – Application for Review of a Registrar’s decision – Whether costs order can be set aside –Where the Applicant’s legal representative sought leave to file Notice to Withdraw as a Lawyer in Court – Leave not granted – Application refused. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 21.02, 21.03
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 28 November 2024 Place: Parramatta Counsel for the Applicants: Mr Leong Solicitor for the Applicants: Ms Wang (Juris Cor Legal) Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Mr Cacaj (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 844 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XI QIAO
First Applicant
JIA LU
Second Applicant
RUOXIN QIAO
Third Applicant
AND: MINISTER FOR IMMINGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Applicant’s application for the matter to be only as to costs is refused.
2.The Applicant’s application for withdrawal as a lawyer which was sought to be filed in Court is refused.
3.The Applicant has leave to file and serve written submissions of no more than 10 pages within 14 days of the date of this order.
4.The Respondent is to file and serve written submissions of no more than 10 pages within 7 days of the date in Order 3.
5.The Court will determine the matter on the papers.
THE COURT NOTES THAT:
A.It is still open to the Applicant’s legal representatives to file a Notice of Withdrawal.
B.If the Applicant’s legal representatives do not intend to file any further written submissions, they are to inform the Court and the legal representatives for the Respondent as soon as practicable.
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
(Ex Tempore, revised from transcript)JUDGE D HUMPHREYS
BACKGROUND
This matter comes before me on an application made for a review of a decision by Judicial Registrar Cummings on 4 October 2024 in which he dismissed an application by the Minister for Immigration that the matter be summarily dismissed.
In making that order, Registrar Cummings made other orders that the parties' cost for the Minister's summary dismissal application are reserved as an issue to be dealt with at the final hearing by a trial judge, and the matter was adjourned for directions hearing at 9.30 am South Australian time on 15 October 2024.
On 15 October, Registrar Cummings made further orders that the application for judicial review be listed for final hearing, and I emphasise the word final, before myself today and that the applicants were to file and serve any further amended application for judicial review, written submissions and any further evidence by 1 November 2024. The Minister was to file written submissions and any further evidence by 15 November 2024.
THE APPLICANT’S APPLICATION FOR REVIEW OF A COSTS ORDER
The matter has come before me today. The applicant in the matter does not wish the matter to be dealt with to finality rather the applicant only wishes to be heard as to whether or not the order in relation to costs being set aside, or costs being reserved, should be dealt with. The applicant suggests to me that I should set aside the order, and in its place order that costs in an amount to be determined, be paid forthwith, on the basis that it would then allow the applicant to have sufficient funds to be able to properly brief his legal representatives at a final hearing.
The amount that should be ordered is in some dispute, and being suggested it should range from, or rather that he has expended an amount of $26,000.00 to date in relation to the matter. I bnote that the scale in relation to an interlocutory application where a matter was dealt with is some $4,189.38. There is thus a significant difference between the amount that is claimed and the amount that is allowed on the scale. The rules that relate to reviews of Registrar's decisions are contained within r 21.02 of the Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021 (Cth).
Rule 21.02 indicates that for the purposes of s 256(1) of the Federal Circuit and Family Court of Australia Act 2021(Cth) an application for review of the exercise of a power for a Registrar must be made within seven days. I do not think there is a particular issue in relation to whether or not that was made. Even if it was not made within the timeframe, I would be prepared to turn around and extend the timeframe. Rule 21.03 is in fact quite apposite in the current matter. Rule 21.03(2) says:
(2) An application must be listed for hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of the filing.
In my view, what that exalts this Court to do is to determine a matter to finality where a review of a Registrar's decision is sought within the shortest possible timeframe. The orders of Registrar Cummings made on 15 October were quite clear. They were that the matter was listed for final hearing before me today. I am ready to hear the matter for final hearing. Mr Johnson, who appears for the first respondent, is also ready to determine the matter, or to make submissions, in relation to the matter on a final basis. Mr Leong has suggested to me that a Notice of Intention to Withdraw as a Lawyer has been filed and were the Court to not deal with the matter on the basis only of the costs issue, he would seek to withdraw.
I note that no Notice of Withdrawal has been filed and in those circumstances for Mr Leong and his instructing solicitor to withdraw, they would require leave of the Court. Leave would not be required had the Notice been filed today. However, Mr Leong has appeared, together with an instructing solicitor and in my view, they appear for all purposes.
DETERMINATION
In my view, noting the relevant rules exhort that reviews of Registrar's decisions are to be dealt with to finality as quickly as possible, noting the orders of Registrar Cummings made on 15 October that the matter was listed for final hearing today, and noting I am ready to hear the matter and can hear the matter, I propose to determine this matter on a final hearing basis.
The application in relation to the matter being dealt with only in relation to the costs order is refused.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 November 2024
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