Aridi v Minister for Immigration and Citizenship [2025] FedCFamC2G 1371

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).

1. By an application for judicial review filed 16 September 2020, the applicant sought judicial review pursuant to s 476 of the Migration Act 1958 (Vic) of a decision of the second respondent (Tribunal) made 18 August 2020. The decision of the Tribunal affirmed a decision made by a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Subclass 500) visa (visa).
2. The hearing of the application for judicial review was listed to take place in person at Melbourne at 10.00am on 21 August 2025.
3. On 18 August 2025, the applicant attempted to file a Notice of Discontinuance pursuant to r 13.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
4. Pursuant to r 13.01(2)(a) of the Rules, a Notice of Discontinuance may be filed at least 14 days before the date fixed for final hearing of the application. Rule 13.01(2)(b) provides that a Notice of Discontinuance may be filed with the leave of the Court, at a later time.
5. The solicitors for the applicant did not seek leave to file the Notice of Discontinuance, or provide an explanation for filing the Notice, or the reason why the proceeding was to be discontinued. The solicitors for the applicant did foreshadow on 8 August 2025 an application for an adjournment of the hearing, which was opposed by the solicitor for the Minister, but no application was then made.
6. Generally, leave to file a Notice of Discontinuance will be granted provided no injustice is caused to the respondent(s) (see Tucker v State of Western Australia [2014] FCA 23 at [11] per McKerracher J). No prejudice has been identified by the solicitors for the Minister. The Court is prepared to grant leave to the applicant to discontinue the proceeding, but the usual condition upon which leave is granted is that the applicant pay the Minister's costs thrown away by reason of the discontinuance (Rule 26.12(7) of the Federal Court Rules 2011 (Cth)). Rule 13.02(1) of the Rules provides that where a party discontinues an application or part of an application, another party to the proceeding may apply for costs.
7. On 19 August 2025, the solicitor for the Minister filed a proposed order that leave to file a Notice of Discontinuance be granted and that the applicant pay the Minister's costs, fixed in the sum of $5,600.00. This was not a proposed consent order, and it was not readily apparent that the Minister's solicitors sought agreement to the proposed orders from the solicitor for the applicant. It is to be inferred that the filing of the proposed order was an application for costs by the Minister pursuant to r 13.02(1) of the Rules.
8. My chambers then inquired of the parties whether the proposed order as to costs was discussed and agreed. On 20 August 2025, the solicitor for the applicant replied with a request that there be no order as to costs and provided an unverified explanation of why the applicant was forced to discontinue the proceeding. The solicitor explained that the applicant was impecunious and had mental health issues which meant that the application could not proceed. The solicitor for the respondent also claimed that the refusal to agree to an adjournment also facilitated discontinuance. It was submitted that in the interests of justice, the Court should exercise the discretion not to award costs. The solicitor for the applicant noted that the Minister is a government party with substantial resources and that an order for costs is compensatory rather than punitive. It was also submitted that the severe financial hardship suffered by the applicant meant that an order for costs would be incapable of satisfaction and would serve no compensatory purpose.
9. On 21 August 2025, the solicitor for the Minister responded to the request. It was submitted that costs should follow the event. The solicitor for the Minister noted the absence of evidence to support the applicant's claims, that the Minister's refusal to agree to an adjournment was reasonable and that the decision to discontinue was a matter entirely for the applicant. Further, the applicant's financial hardship was not a reason to refuse to make a costs order, especially where the claim was not supported by evidence. The Minister sought costs fixed in the sum of $5,600.00.

1. The Court has a wide discretion under the Rules to make appropriate orders as to costs of the proceeding (s 214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). See also Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129 at [24] per Mortimer CJ, Colvin and Dowling JJ). However, ordering of costs against a discontinuing party is not automatic (Harvey Norman Holdings Ltd v Fels [2002] FCA 13 at [7] per Stone J).
2. The solicitor for the applicant did not file any affidavit evidence to substantiate the claims of financial hardship or ill health referred to in the request that there be no order as to costs. There is no evidence before the Court upon which to exercise the discretion other than in the usual way, which is that the applicant pay the costs occasioned by the discontinuance.
3. The Notice of Discontinuance was not filed until three days before the date of the final hearing. The solicitors for the Minister had by then filed a Court Book and an Outline of Written Submissions, as had been ordered by the Registrar at a directions hearing on 21 April 2021. The solicitors for the Minister had no doubt undertaken some general preparation and considered and obtained instructions regarding the proposed adjournment of the hearing. A copy of the transcript of the hearing before the Tribunal was also obtained and was proposed to be tendered in evidence at the hearing.
4. On 8 August 2025, the applicant requested an adjournment of the final hearing, but that request was not supported by any evidence. The hearing was first listed for final hearing by the registry on 2 July 2025. It was not unreasonable for the solicitors for the Minister to object to an adjournment, especially when the proceeding has been awaiting final hearing for almost five years.
5. Whilst the applicant may be suffering financial hardship and ill health, that is not a reason to refuse to exercise the discretion as to costs. The Minister has been put to cost and expense in preparing this proceeding for trial and is entitled to the sum of $5,600.00, which is less than the scale amount of $5,859.80 provided for in Schedule 2, Part 2 of the Rules for a proceeding that has been discontinued within 14 days of the date fixed for final hearing. The sum claimed is fair and reasonable in the circumstances.

1. The name of the first respondent is to be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025. An order will be made amending the name of the first respondent and the title to the proceeding.
2. Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The name of the second respondent is amended to 'Administrative Review Tribunal'.
3. Pursuant to r 13.01(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the applicant have leave to file a Notice of Discontinuance dated 18 August 2025.
4. The final hearing fixed for 21 August 2025 is vacated.
5. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding, fixed in the sum of $5,600.00.

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