Singh v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 990

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 990

File number:

MLG 2404 of 2018

Judgment of:

JUDGE KENDALL

Date of judgment:

31 October 2023

Catchwords:

MIGRATION – Temporary Business Entry visas – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – where first applicant (and first applicant only) contacted the Court on short notice advising he no longer wanted to proceed with the hearing – where no notice of discontinuance had been filed – application discontinued – costs awarded below set scale.   

Legislation:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.01(1) & 13.01(2)

Migration Act 1958 (Cth), s 476

Cases cited:

Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 931

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of hearing:

31 October 2023

Place:

Perth

Applicants:

First and second applicants appeared in person

Counsel for the First Respondent:

Mr K Sypott

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

MLG 2404 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LAKHWINDER SINGH

First Applicant

DAVINDER KAUR

Second Applicant

BAWAN SINGH

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

31 OCTOBER 2023

THE COURT ORDERS THAT:

1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

3.The application be discontinued and the need for the filing of any further documents in this regard be dispensed with.

4.The first and second applicants pay the first respondent’s costs, fixed in the sum of $4,600.

5.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

1. This matter was listed for a final hearing before the Court at 2.00pm (AEDT) / 11.00am (AWST) on 31 October 2023.

2. When the matter came before the Court for hearing, the Court made the following orders:

   1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

   2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

   3.The application be discontinued and the need for the filing of any further documents in this regard be dispensed with.

   4.The first and second applicants pay the first respondent’s costs, fixed in the sum of $4,600.

   5.        Written reasons for judgment to be published from Chambers at a later date.

3. These reasons for judgment are those referred to in order 5 above. They explain why the Court proceeded in the way that it did.

   BACKGROUND

4. Before the Court was an application for judicial review filed in the Melbourne Registry of this Court on 10 August 2018 (the “application”). That application was accompanied by an affidavit which was deposed by the first and second applicants on 6 August 2018 (and filed in this Court on 10 August 2018).

5. The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicants sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 16 July 2018. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicants Temporary Business Activity (Class UC) (Subclass 457) visas.

6. On 20 February 2019, orders were made by Registrar Luxton of this Court programming the matter to a final hearing before another judge of this Court on 18 November 2020.

7. On 19 November 2020, the parties were advised that the hearing (above) had been vacated and that they would be “notified in due course of a new listing date”.

8. On 17 April 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 2.00pm (AEDT) / 11.00am (AWST) on 31 October 2023.

9. On 29 October 2023, the parties were reminded of the date, time and location of the hearing.  They were also provided with instructions for a hearing by “video link” (using Microsoft Teams) before this Court.

10. On 30 October 2023, the first applicant contacted my Chambers via email and advised as follows:

    Please be advised that I want to withdraw my case.

11. No notice of discontinuance was filed or sent to my Chambers.  Nor was it clear whether the second and third applicants also wished to have the matter discontinued.

12. On 30 October 2023, my Chambers notified the parties that the first applicant’s email request would be discussed with the parties at the hearing listed on 31 October 2023.

13. When the matter came before the Court (on 31 October 2023), the first and second applicants appeared (via video link). Mr Keith Sypott (“Mr Sypott”) from the Australian Government Solicitor appeared on behalf of the Minister (also via video link).

14. Correspondence from my Chambers (detailed above) was tendered (together) and referenced as Exhibit 1.

15. Correspondence from the first applicant to Chambers dated 30 October 2023 and advising that he wanted to “withdraw his case” (set out above) was tendered and referenced as Exhibit 2.

16. The Court confirmed with the first and second applicants that their family wished to discontinue the proceeding. The first and second applicants confirmed to the Court that they no longer wanted to proceed with the matter.

17. The Court confirmed that it had before it the materials contained in Exhibits 1 and 2 and that, as set out by this Court in Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 931, a party may discontinue an application by filing a notice of discontinuance in accordance with the approved form: r 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”). Any such notice may only be filed with the leave of the Court (or a Registrar) if filed within 14 days of a final hearing date: r 13.01(2) of the Rules.

18. The Court noted that although no notice of discontinuance had been filed in this matter, the Court could make orders effectively discontinuing the proceeding for the applicants and waiving any requirement for any further materials to be filed in that regard. Noting that the first and second applicants had confirmed that they no longer wanted to proceed (as explained above), and taking into account the materials contained in Exhibits 1 and 2, the Court confirmed that it would make an order to allow for the discontinuance of the matter.

19. The Court explained to the applicants that, where an applicant discontinues a proceeding, the Minister is entitled to seek costs.

20. The Court asked Mr Sypott what the Minister sought in relation to costs. Mr Sypott sought costs, fixed in the sum of $4,600. The Court notes that the sum sought is well below the set scale amount the Minister is entitled to (either in relation to a matter concluded at a final hearing or a matter which is discontinued less than 15 days before a final hearing).

    CONCLUSION

21. In the circumstances, the Court proceeded to make orders to discontinue the matter and awarded costs to the Minister, as outlined at [2] above.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       3 November 2023