Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 18
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 18
File number: MLG 2343 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 3 September 2021 Catchwords: MIGRATION – Judicial review application – decision of the Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – notice of discontinuance filed
COSTS – General rule – where notice of discontinuance filed – where applicant submits hardship
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 22.02, 29.13
Migration Act 1958 (Cth) s 476
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Bunnag v Minister for Immigration (No 2) [2008] FMCA 430
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
WZATK v Minister for Immigration and Border Protection [2014] FCA 1174
WZATK v Minister for Immigration and Border Protection [2015] HCASL 41
Division: Division 2 General Federal Law Number of paragraphs: 6 Date of last submissions: 3 September 2021 Date of hearing: 3 September 2021 Place: Perth Applicant: Appeared in-person Solicitor for the First Respondent: Ms S. Wright Counsel for the First Respondent: Mills Oakley For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2343 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UPKAR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Applicant pay the First Respondent’s costs in the sum of $3200 by 3 March 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
These proceedings were instituted by way of an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) filed on 1 November 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), affirming the Delegate’s Decision not to grant the applicant a Student (Temporary) (Class TU) visa. On 11 July 2018 a Registrar of this Court made orders listing the matter for hearing before Judge Mercuri in the Melbourne Registry where the application was filed on 20 April 2020.
On 6 August 2018 the matter was relisted for hearing to 9 June 2020 before Judge Mercuri in Melbourne. On 19 November 2019 a Notice of Adjournment was sent to the parties indicating the matter was being adjourned to a date to be fixed. No reason was given for that adjournment and certainly, that adjournment and the prior adjournment arise as no fault of the parties. The delays in the hearing of migration matters in the Melbourne Registry are common knowledge and acknowledged by the Court. See for example, AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322; Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556.
As a consequence of those delays in hearing in the Melbourne Registry, a significant number of cases in the Melbourne Registry have recently been reallocated to judges in other registries of the Court, including the Perth Registry. This is one of those cases that was recently reallocated and was listed for a directions hearing today in order to put in place orders for a final hearing. On 1 September 2021 the applicant was successful, seemingly after a number of attempts on earlier days, in filing a Notice of Discontinuance in the Melbourne Registry of the Court. The applicant confirms today that he has, in fact, filed that Notice of Discontinuance.
The question of costs now arises. The applicant submits that he is unable to afford to pay costs and that he has no employment, no forthcoming employment, and that he has commitments to meet to ensure his livelihood and that of his family. The Minister submits there is nothing unusual in those circumstances and that the usual order for costs ought to apply. The Minister has indicated that if an order for costs is made, the applicant can approach the Minister's department with respect to a payment plan.
Generally, costs follow the event and, therefore, an unsuccessful or discontinuing party in litigation of this type pays the successful party's costs: r 29.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“FCFCOA GFL Rules”); Bunnag v Minister for Immigration (No 2) [2008] FMCA 430 at [8] per Lucev FM; WZATK v Minister for Immigration and Border Protection [2014] FCA 1174 from which the High Court refused to grant special leave in WZATK v Minister for Immigration and Border Protection [2015] HCASL 41. The incapacity of a party to pay an order for costs is not ordinarily a reason not to make an order for costs, and there is nothing in this case that takes the case out of the ordinary run of cases in migration proceedings which would warrant non-payment of costs by the applicant upon the filing of a Notice of Discontinuance.
Indeed, under the rules of this Court, an order for costs can be made in Chambers without hearing the parties following the Notice of Discontinuance being filed: r 22.02 of the FCFCOA GFL Rules. In the circumstances, the Court is of the view that the applicant ought to pay the first respondent's costs in the sum of $3,200, which is less than the amount which the Minister is entitled to claim pursuant to Sch 2 of the FCFCOA GFL Rules, and in the circumstances rather than the usual order that the Court as presently constituted makes allowing for one month to pay, the Court will make an order that there be six months to pay, and the applicant can then discuss with the Minister's department once that order is made, how that payment is to be made.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 7 September 2021
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