Wong v Minister for Home Affairs

[2019] FCCA 333

FEDERAL CIRCUIT COURT OF AUSTRALIA

WONG v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 333

Catchwords:
MIGRATION – Application for judicial review – application withdrawn – where the Minster has failed to provide relevant information – Minister’s costs reduced.

Legislation:

Migration Act 1958 (Cth)

Applicant: YAU YUK WONG

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 29 of 2018

Judgment of: Judge Young

Hearing date: 22 January 2019

Date of Last Submission: 22 January 2019

Delivered at: Darwin

Delivered on: 22 January 2019

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms Milutinovic

Solicitors for the First Respondent: Sparke Helmore Solicitors

ORDERS

1. The applicant is to pay the First Respondent’s costs in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADG 29 of 2018

YAU YAK WONG

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This was an application by the applicant for judicial review of a decision of the Tribunal to refuse the applicant a student visa. The relevant regulations under the Migration Act as at the time of the applicant’s application for the visa on 15 May 2014 were repealed. I was not provided with a copy of the repealed legislation and there was considerable delay while I went away and researched the matter.

3. I consider that the Minister ought to have provided my associate with a copy of repealed legislation and counsel ought to have been properly armed with information about the repeal and other matters.  I consider that there was an unnecessary waste of time in the hearing this afternoon as I undertook my own research with my deputy associate as we tracked down the repealed regulations.

4. I have spent a good hour, probably an hour and a half doing that, and I consider that I ought not to have had to have done that. Not only my time was wasted to a degree, I consider that the applicant’s time was wasted to a degree, though I think the primary reason that he has wasted his time is that he has made a misconceived application, which he has withdrawn, having heard my explanation to him about the requirements under the regulations at the time the Tribunal heard his application, that is, a requirement that he be enrolled in an educational institution or have a certificate of offer, and he frankly said he did not.

5. Nevertheless, as a mark of my displeasure at not being provided with the repealed regulations, I propose to have that reflected in the costs order I make.  The costs are for a discontinued proceeding, which this one is, under schedule 1 of the Circuit Court Rules Part 3, migration proceedings, for an application that is discontinued later than 15 days before the final hearing is $5,227. I propose, in view of what I consider a degree of wasted time this afternoon, to make an order in the sum of $4,000.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 13 February 2019