Silva v Minister for Immigration and Citizenship
[2025] FedCFamC2G 996
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Silva v Minister for Immigration and Citizenship [2025] FedCFamC2G 996
File number(s): SYG 906 of 2021 Judgment of: JUDGE MARQUARD Date of judgment: 30 July 2025 Catchwords: MIGRATION – application for leave to file Notice of Discontinuance made after the hearing and immediately prior to delivery of judgment – extension of time application – reasonable costs Legislation: Migration Act 1958 (Cth) ss 476, 477 Cases cited: El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474
Jalloh v Minister for Immigration [2015] FCCA 1154
Vege v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1325
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 30 July 2025 Place: Sydney Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr T Guihot of Sparke Helmore Lawyers Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 906 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GIOVANE ARAUJO SILVA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.The name of the second respondent is amended to Administrative Review Tribunal.
2.Leave is granted to the applicant to discontinue the application for extension of time dated 21 May 2021.
3.The Notice of Discontinuance is taken to have been filed in Court today.
4.The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $4,189.30.
THE COURT NOTES THAT:
A.Pursuant to r 1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court has dispensed with the rule for an approved form Notice of Discontinuance.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MARQUARD:
Background
By way of an application dated 21 May 2021, the applicant applied for an extension of time to seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), dated 15 April 2021. The Tribunal affirmed a decision of the first respondent, the Department of Home Affairs (the Department), dated 12 June 2019 to refuse to grant the applicant a Student (Class TU) (Subclass 500) visa (the student visa).
The background to the matter is set out in the first respondent’s written submissions dated 9 August 2024 at [2] to [9] and [15] to [16].
The applicant lodged his originating application for judicial review with this Court, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), on 21 May 2021, one day after the 35-day prescribed time period for lodgement stipulated by the statute: s477(1) of the Act. He therefore sought an extension of time pursuant to s 477 (2) of the Act.
A hearing of the extension of time application was held in this Court on 19 June 2025.
The parties were notified by email on 28 July 2025 that delivery of judgment in respect of the extension of time application was listed on 30 July 2025.
Application for leave to file Notice of Discontinuance
On 28 July 2025, at 6:24pm and at 8:30pm (outside of Registry hours), the applicant sent the Court two emails. The earlier email (6:24pm email) notified the Court and the solicitor for the first respondent of his intention to withdraw proceedings as follows:
…
I am writing to inform you that I intend to withdraw my appeal in the matter SYG906/2021, which is currently listed for judgment on 30 July 2025 before Her Honour Judge Marquard.
I will be lodging a Notice of Discontinuance (Form 10) through the Commonwealth Courts Portal as soon as possible.
…
The second email (8:30pm email) sent to the Court and the solicitor for the first respondent attached an undated and unsigned Form 48 Notice of Discontinuance for use in the Federal Court as follows:
Please find attached my completed
Notice of Discontinuance regarding
matter SYG906/2021.
…
In both the 6:24pm email and the 8:30pm email the applicant did not seek leave of the Court for filing the Notice of Discontinuance (NoD) notwithstanding that he wished to file the Notice of Discontinuance outside the 14-day period stipulated in r. 13.01(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
On 29 July 2025, the Court by way of email sent the parties the following correspondence:
(a)Email at 11:14am (11:14am email) advising the applicant that the NoD he had provided was not in the approved form and attaching a blank copy of a NoD in a form approved for this Court. The 11:14am email also notified the applicant that leave of the Court would need to be sought prior to any NoD being accepted for filing.
(b)Email at 2:04pm (2:04pm email) advising the applicant that the matter remained listed on 30 July 2025. The email also included the following information:
Under r. 13.01(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth):
(2) 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.
[Emphasis added]
I note that you have not sought leave to discontinue.
I advise that should you wish to make an application for discontinuance, Her Honour will hear this application prior to the delivery judgment tomorrow.
The applicant in response to the 11:14am and 2:04pm emails responded by email at 2:56pm (2:56pm email) on 29 July 2025 as follows:
…
Please find attached the completed Notice of Discontinuance for the matter SYG906/2021. I understand the Court is scheduled to deliver judgment tomorrow, however I respectfully request that my intention to discontinue the appeal be taken into consideration.
The Court by way of response, notified the parties:
I acknowledge receipt. Please be advised that the matter remains listed.
…
An interlocutory hearing on the question of application for leave to file a Notice of Discontinuance was held on 30 July 2025. The applicant was present in person. Mr Guihot from Sparke Helmore Lawyers appeared for the first respondent.
Relevant legal principles
Under r. 13.01(2) of the GFL Rules:
(2) 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.
[Emphasis added]
Under r 1.07 of the GFL Rules:
Court may dispense with rules
(1)The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2)If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
The principles of discontinuance were set out by Lucev J in Jalloh v Minister for Immigration [2015] FCCA 1154 (Jalloh) at [6]:
Generally speaking, a notice of discontinuance will be acceded to by a Court, although the Court’s discretion to grant leave is unfettered but not automatic: Primary Health Care Ltd v Australian General Practice Network Ltd [2012] FCA 174. Leave to file a notice of discontinuance would generally be acceded to where an applicant does not wish to proceed, it not being desirable that an applicant should be compelled to litigate against the applicant’s will, as was observed in Trade Practices Commission v APM Investments Pty Ltd (No. 2) (1983) 74 FLR 276, where Woodward J cited earlier observations in the United Kingdom in Covell Matthews and Partners v French Wools Limited [1977] 2 All ER 591. And a notice of discontinuance being filed in these circumstances would generally be acceded to where there is no injustice to a defendant.
Consideration of the application for leave to file a Notice of Discontinuance
The Court’s Registry emailed the applicant on 29 July 2025 requesting that a Notice of Discontinuance be filed in accordance with the Court’s approved form. The Registry also emailed a blank version of the Court’s approved form. No documents were provided in response to this request and the 2:56pm email, although purportedly attaching a completed Notice of Discontinuance, contained no attachments.
In correspondence from the applicant dated 28 July 2025, the applicant stated in the 6:24pm email:
I intend to withdraw my matter my appeal in the matter SYG906/2021 which is currently listed for judgment on 30 July 2025 before Her Honour Judge Marquard.
In the 8:30pm email he attached a document which he said was a completed Notice of Discontinuance, although it was not in the approved form. The Court notified the applicant he would need to seek leave of the Court.
On 30 July 2025, at the interlocutory hearing of this Court the applicant was asked if he was seeking leave to discontinue his matter as a Notice of Discontinuance was not filed 14 days prior to the hearing in accordance with r. 13.01(2) of the GFL Rules. He confirmed that he was.
The first respondent did not oppose the application for leave to discontinue or claim any prejudice as a result of the discontinuance. The first respondent sought costs pursuant to r 13.02(1) of the GFL Rules in the amount of $4,189.30.
Even though it is unusual to seek discontinuance directly before delivery of judgment in a matter, given that the applicant has clearly expressed the intention to discontinue in writing and at the interlocutory hearing, the Court is satisfied that it is appropriate to grant the applicant leave to file a Notice of Discontinuance, in accordance with the principles referred to in Jalloh at [6] per Lucev J. Reference was made in Jalloh to an applicant not being made to litigate against his will (at [6]). The Court has also taken into consideration that the first respondent consented to the application for leave to file a Notice of Discontinuance and no prejudice was claimed.
Costs
The Court raised with the applicant the question of costs. Rule 13.02(1) of the GFL Rules provides:
If a party discontinues an application, or part of an application, another party to the proceeding may apply for costs.
Champion J in Vege v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1325 at [6] quoted Professor Dal Pont in the Law of Costs (5th ed, 2021) who observed at [14.63]:
Unless there are reasons in justice for another outcome, a defendant should not, it is reasoned, be out of pocket in defending a proceeding the plaintiff chooses not to proceed with…
His Honour also referred to El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 (El-Debel) in which Foster J stated at [17] that there is a:
general policy of the law to the effect that a party should always be permitted to discontinue its proceedings but, in the modern setting, should usually have to pay the costs of the other parties occasioned by the bringing of the proceedings and their subsequent abandonment.
Consequent upon the indication that the Court was prepared to grant leave to the applicant to discontinue in Court, the first respondent sought a fixed costs order under Schedule 2, Part 2, Division 2, item 3 of the Rules (discontinuance scale), being the item for a discontinuance, essentially which takes place less than 14 days before the hearing. The amount sought was $4189.30 which was the same amount which could have been sought had the matter concluded without a favourable outcome to the applicant. The applicant had no submissions to make in relation to costs.
The Court is satisfied that costs should be awarded to the first respondent, taking into consideration Rule 13.02(1) of the GFL Rules and the general policy of the law as expressed in El-Debel per Foster J at [17]. The Court is satisfied that costs sought are reasonable, taking into consideration the costs incurred by the first respondent including preparation of the Court Book, written submissions and affidavits and preparation and attendance at the call over and hearing. It would arguably have been open for the first respondent to press for higher costs in accordance with the discontinuance scale, given the late application for discontinuance, and it is commendable that they did not, given that the applicant was a litigant in person.
In all the circumstances, the Court is satisfied that costs should follow the event and that the costs sought are reasonable.
CONCLUSION
Leave is granted for the applicant to file a Notice of Discontinuance on 30 July 2025 without the need to take further steps to give effect to it. The need for the Notice of Discontinuance to be in the approved form is dispensed with pursuant to r 1.07 of the GFL Rules. The Court is satisfied that a costs order should be made in the fixed amount of $4,189.30. The Court will so order.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 31 July 2025
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