EXK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1460

1. The first respondent must file and serve the following documents by 4:00pm on 16 September 2025:

(a) any Affidavit evidence to be relied upon; and

(b) a written outline of submissions (not exceeding 10 pages in length and not using footnotes), and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing; and

(c) a list of authorities

1. At least 2 days before the hearing referred to in order 2 above, the parties are each to provide a bundle of their authorities provided to the Court which:

(a) is in electronic searchable format (preferably PDF);

(b) is paginated; and

(c) has an index with each entry bookmarked.

1. If the applicant is not represented by a lawyer, then at least 2 days before the hearing referred to in order 2 above, the first respondent must:

(a) provide to the Chambers of Judge Given a joint bundle of authorities in accordance with order 5 above; and

(b) (b) file and serve an Affidavit pursuant to rule 10.29 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Rules) which evidences:

(i) service of all sealed documents filed in the proceedings for the first respondent, upon the applicant; and

(ii) (any other correspondence in the proceedings which may be relevant to matters to be raised and/or orders which may be sought at the hearing.

1. The applicant must pay the first respondent's costs thrown away occasioned by the amendment referred to in Order 3(a) fixed in the sum of $1,000.
2. Costs of and incidental to the appearance on 2 September 2025 are reserved.
3. Liberty to apply on 2 days' notice.

1. The hearing referred to at order 2 is to occur via Microsoft Teams.
2. For the purposes of order 6(b) the annexures need not reproduce the sealed Court documents in full.

1. Any directions inconsistent with these orders are vacated.

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 typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. On 1 September 2025, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) commenced, as did a new central Practice Direction for migration proceedings. Those instruments, like their antecedents, provide for certain variations to the practice and procedure of this Court as it applies in the migration jurisdiction.
2. Contrary to what appears to be the view of a number of practitioners, those are the only exceptions to the practice and procedure of this Court in respect of migration.
3. As the Federal Court has observed on more than one[1] occasion:

There seems to be a deeply entrenched misconception among some practitioners of this Court that migration litigation is some form of Galápagos Island where the ordinary rules do not apply.[2]

1. Given the even higher volume of migration cases in this Court, it is unsurprising that the observation made above, which I entirely adopt, has greater resonance here. It will be addressed below in the context of the extremely late, and all too common, adjournment application with which these reasons deal.

1. The applicant commenced the instant proceedings on 21 September 2018. As such, in less than 3 weeks' time they will have been on foot for 7 years. The applicant was unrepresented at the time the proceedings commenced.
2. The proceedings were initially docketed to another Judge of the Court (first primary Judge). The parties appeared before a Registrar of the Court on 15 October 2018, on which occasion orders were made for the preparation of the proceedings for hearing which included a grant of leave to the applicant to amend by 17 January 2019. He did not do so. The proceedings were to be listed for callover before the first primary Judge on a date to be administratively advised to the parties.
3. The proceedings were later transferred to the Court's central migration docket (possibly by reason of the retirement of the first primary Judge). On 25 February 2025, the proceedings were called-over before a Registrar. The parties were put on notice by orders made that day that the proceedings would be listed for a final hearing. The applicant was again granted leave to amend. He did not.
4. The proceedings remained in the central migration docket until 2 June 2025, on which date they were docketed to me and I made orders listing them for hearing before me on 2 September 2025, namely three months hence. The applicant was again granted leave to amend his application by 19 August 2025. He did not do so. The applicant and the first respondent were ordered to file written submissions 14 and 7 days before the hearing, respectively. The first respondent complied with that order. Once again, the applicant did not. The evidence before me demonstrates that the applicant was served at 8:59pm on 26 August 2025 with those submissions, by email to the gmail address given by him for service in his originating application.[3]
5. Other than his originating documents, and a Notice of Address for Service referred to at [10] below, the applicant has filed no documents in these proceedings in the 7 years since he commenced them.

1. On 27 August 2025 (being the day after the first respondent had filed written submissions), a Notice of Address for Service was filed by the solicitor for the applicant. At or about 5:51pm on 27 August 2025,[4] a solicitor in the employ of the applicant's solicitor (employed solicitor) wrote to the solicitor for the first respondent by email, serving the Notice of Address for Service and seeking to discuss amendment and adjournment. No doubt given the lateness of that request, referable to the hearing date, the solicitor for the first respondent took the time to reply at 9:55pm on the same day. That reply indicated that his client would be prepared to consent to an application to vacate the hearing fixture, and to a fresh timetable, subject to an order for costs thrown away because the first respondent's written submissions had already been prepared and filed and would now be wasted if there was to be an amendment. That email concluded:

If such a costs order is agreeable to your client, could you please send through your proposed consent orders for review?

1. At 12:32pm on 28 August 2025, the employed solicitor for the applicant provided a document to the solicitor for the first respondent, headed "Proposed Consent Orders". This is the only indication that there was any occasion on which the employed solicitor for the applicant understood that the nature of that document as being a request only, as will become clear from what followed. The email to the solicitor for the respondent said (original emphasis and error):

We attach draft orders. Please review and if suitable, provided a signed copy for us to sent to the court.

1. At 12:46pm on 28 August 2025, the solicitor for the first respondent returned to the employed solicitor for the applicant, a copy of the proposed consent order which he had signed stating (original emphasis):

I attach a signed copy of the proposed orders. I confirm that I have not made any changes other than to apply my signature and a date.

Please copy me to your correspondence to the Court.

1. At 3:03pm on 28 August 2025, the employed solicitor for the applicant wrote to my Associate in the following terms (emphasis in original):

We refer to the above matter and confirm we have recently been appointed to act for the applicant.

As such and given the above, the parties have agreed to the attached orders/variance in timetable, which includes vacating the current hearing set down for 2 September 2025, to allow the applicant the opportunity to file any amended application and submissions and give the respondent the opportunity to file submissions in response.

We confirm that lawyers for the respondent are copied into this email.

Please confirm the above and contact me with any queries.

Regards

(adjournment email)

1. At 3:22pm, my Associate responded to the parties at my direction as follows (emphasis in original):

Dear practitioners

We refer to the email below from Ms Merlino which has been brought to Judge Given's attention.

At this time, the proceedings remain listed for hearing in person at 10:15am on 2 September 2025, on which occasion the parties should be prepared to address the Court as to:

1. the failure of the applicant to comply with the orders made on 2 June 2025;

2. how parties are able to unilaterally amend orders by consent without approval of the Court, having regard to the principles in Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138 and Amirbeaggi (Trustee), in the matter of Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949; and

3. on what basis and by which authority the Court can be directed by a solicitor to make orders and confirm once that has occurred.

Sincerely

1. The employed solicitor for the applicant, responded only to request that the applicant's Counsel be allowed to appear by videolink because of their being located in Melbourne.

1. The parties appeared at the hearing fixture, the applicant's Counsel by Microsoft Teams and the first respondent's solicitor in person. In advance of the hearing, the solicitor for the first respondent sent to the Court (and to the applicant's solicitor) an Affidavit affirmed by him on 29 August 2025, which he sought leave to read (August Affidavit). That leave was granted with an order that the Affidavit be filed by 4:00pm on 2 September 2025.
2. At the commencement of the hearing, when the Court observed that, from recent correspondence, the matter seemed unable to proceed, Counsel for the applicant responded:

...I can proceed if the court wants me to. I have done draft written submissions. I'm not sure it's fair to the Minister with no notice to proceed, so the application for adjournment is made...

1. In respect of the applicant's own defaults and delays, his Counsel submitted that there was no valid reason for them, other than to say that it was simply a case of an applicant not being able to get the funds necessary to retain lawyers "in time", and also having been referred to his instructing solicitor "very late in the piece by the original migration agent who was assisting the applicant". Counsel for the applicant acknowledged that:

1. I will observe at this juncture that there is no evidence of a migration agent being involved in these proceedings. There was also no evidence proffered by the applicant, his solicitor or the employed solicitor. The following chronology was given by Counsel from the Bar table:

(a) on 18 August 2025, the applicant was referred to his (now) solicitor by a migration agent;

(b) on 20 August 2025, the solicitor conferred with the applicant;

(c) on 21 August 2025, Counsel rendered an opinion; and

(d) on 26 August 2025, the representatives were instructed to proceed, which was clarified to mean that funds were received in trust.

1. Despite the aforementioned chronology, noting that there was least a week's lead time, Counsel for the applicant accepts that no contact was made with the first respondent's solicitors to even presage, as a courtesy, the possibility that the applicant may become represented until the evening of 27 August 2025 (see [10] above). In fact, the first respondent's solicitor learnt of the more fulsome chronology only when it was explained from the Bar table. The explanation for that silence appears also to have been that the representatives were awaiting funds in trust.
2. Counsel for the applicant then submitted:

the adjournment should be given. This is the first time an adjournment application is being made. There is counsel and solicitors on board now, and we're ready to go, really. We will file submissions as soon as your Honour requires us to, and the matter can be dealt with in due course.

1. Despite there having been no suggestion to this effect, Counsel for the applicant proactively contended that the applicant was not "trying to game the system". I will return to that protestation shortly.
2. In terms of the conduct of the employed solicitor, it was said that she:

accepts that ...both the wording and the tenor of the correspondence was inappropriate, having regard to the authorities cited in your Honour's chambers' email, the - it's not appropriate for solicitors to ask courts to confirm orders. An application has to be made, and that was missing from her email. She accepts that, and the only explanation we have, really, is busy solicitors rushing and not complying with the appropriate protocol, so the apology is made. In terms of explanation for the delay, which we must give - one of the principles enunciated by your Honour in those authorities - there isn't an adequate explanation...

1. Counsel for the applicant also submitted that the applicant's solicitor has briefed him regularly for a very long time and that:

We always comply with timetabling orders. We're always eager to let our colleagues over on the Minister's side know and keep them up to date. There has been a lapse here, and the lapse is caused in large part by the delay part by the delay of the applicant in retaining solicitors...

1. Counsel also submitted that "the court's discretion should be exercised judicially and not necessarily to make examples of people unnecessarily".
2. The solicitor for the first respondent, after reiterating his own apology which is contained in the August Affidavit, submitted that the first respondent was in a difficult position because, despite Counsel for the applicant making the submission set out at [17] above, the first respondent's solicitor had not been provided with even so much as a draft of the proposed ground of review, much less the written submissions, upon which Counsel was ready to proceed.
3. In essence, despite the submission recorded at [22] above that there was no deliberate strategy being employed in the lateness of steps taken, and despite the further assertion that the applicant's solicitor (and his Counsel) are fastidious about their communications with the Minister's lawyers, one matter stands in stark relief. That is, that despite their apparent willingness to proceed at the commencement of the hearing, the applicant (by his representatives) withheld the proposed amended application and written submissions from the first respondent's solicitor.

1. Sections 190 and 191 Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) provide as follows:

Overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).

Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:

(a) the Rules of Court;

(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).

Parties to act consistently with the overarching purpose

(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(2) A party's lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party's behalf:

(a) take account of the duty imposed on the party by subsection (1); and

(b) assist the party to comply with the duty.

(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:

(a) the likely duration of the proceeding or part of the proceeding; and

(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:

(i) the costs that the lawyer will charge to the party; and

(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.

(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).

(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party's lawyer to bear costs personally.

(6) If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.

1. Whether to grant the adjournment in this case is a complicated and finely balanced question.
2. The submission made by Counsel for the applicant at [25] above is gratuitous. If it was intended to somehow coerce reasons which omitted the chronology of conduct on the part of the applicant and his representatives, it ought not to have been made. It is necessary to ventilate and consider the conduct of the parties and their lawyers if it is relevant to the exercise of the Court's adjournment discretion. In this case it is, as much as the applicant's representatives may wish otherwise. The responsibility for whether behaviour is exemplary (positively or not) is a matter which rests with those individuals and the manner in which they acquitted their duties in the proceedings.
3. The following can be said about the applicant's prosecution of these proceedings based on the material before the Court. He has:

(a) had almost 7 years in which to prepare his matter for hearing;

(b) elected, or failed, to avail himself of all permissive order and grants of leave made;

(c) otherwise failed to comply with all interlocutory orders of the Court;

(d) had 3 months' notice of the final hearing date; and

(e) not secured legal representation until 6 days before that final hearing.

1. Having regard to the duty of the applicant imposed by s 190 of the Act (which is mandatory having regard to the word "must" in s 191(1) of the Act[5]) and that the applicant has no right to legal representation,[6] his having obtained it at the eleventh-hour is not a determinative factor in whether to adjourn. It is but one factor which must be weighed with others in consideration of an adjournment.
2. The submission at [21] above, to the effect that the applicant has not previously sought an adjournment is, with respect, not relevant. While it can be accepted that a party might be serially delinquent and seek multiple extensions or adjournments which may then weigh against further adjourning, does not invert to render any first-time adjournment request as automatically irresistible.
3. As to the conduct of the solicitor and employed solicitor for the applicant, the Court appreciates that the time remaining before the imminent hearing date was limited. However, it is for that very reason that the employed solicitor and her supervisor/s ought to have focused on their duties and obligations as practitioners. Contrary to what is implied by the submission at [23] above, those duties are not quirks or preferences of mine - they are longstanding duties, extant in the Solicitor's Rules (and their antecedents), and do not exist merely because they have needed to be addressed in recent judgments of this Court.
4. The prudent and most courteous course for any solicitor, freshly arrived in proceedings (as the employed solicitor for the applicant was), would have been to candidly acknowledge the laxness of the applicant to date and that what was being sought was, in all the circumstances, a significant indulgence. It is not a difficult task for a newly retained practitioner to straddle the divide of the deleterious conduct of their client and their own professional duties to the Court.
5. In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [68] Allsop, Kenny and Griffiths JJ observed the following in respect of pro bono representation:

The Court acknowledges that the applicant's legal representatives were acting on a pro bono basis. Such involvement generally assists in the due and efficient administration of justice and the Court is grateful to practitioners who become involved on a pro bono basis. It is no excuse, however, for not complying with the Court's orders in the manner and frequency which occurred here.

1. Accordingly, whether paid or pro bono, appearing in migration litigation does not carry with it an exemption from compliance or competence. To that end, Counsel for the applicant expressly confirmed to the Court that neither he nor the applicant's solicitor is acting pro bono.
2. The Court had an initial impression that the approach in this case by the applicant's lawyers was that their entry into the proceedings was, in and of itself, a determinative factor as to whether the proceedings should adjourn. That impression was confirmed when Counsel for the applicant that such an unwarranted assumption was in fact made:

Probably because the courts are very forgiving and do give adjournments in these situations.

1. To proceed in accordance with that view, which was reflected in the adjournment email, reveals that the applicant's representatives did not understand the position of the applicant, nor themselves, and instead took the view that the Court should be grateful simply for their entrance into the fray. Having regard to the observations at [1] to [2] above, they are not the only ones. There are many who practice in the migration jurisdiction of this Court (and other Courts), who have lost sight of the fact that despite its administrative law content, it remains civil litigation. As such, practitioners, whether appearing for applicants or the Minister, have professional, ethical and practical duties to which they must first and foremost adhere, irrespective of the subject matter of the suit before the Court. If lawyers specialise in particular subject matter, they are members of the profession first, and subject matter specialists second.
2. The aforementioned assumption extended to the terms and tone of the adjournment email which not only ignored the discretion of the Court, but also transgressed the individual professional obligation of the employed solicitor to not deal with a court on terms of informality which may reasonably give the appearance that the solicitor has special favour with this Court.[7] While acknowledging that competent representation of applicants in the migration jurisdiction can benefit an applicant and assist the Court, those who represent applicants do not have elevated status accordingly: see ALA15 (supra).
3. To be clear, the advent of a representative for the applicant in migration proceedings is not, in and of itself, a matter which will automatically warrant an adjournment being granted, especially against the long-standing period applicants ordinarily have in this Court to prepare for hearing because of the volume of cases pending. In that regard, it is pertinent to observe that last minute adjournments are sought all too frequently in migration cases and, as has been observed previously, failure of a party to act consistently with the overarching purpose sounds in wastage beyond the financial, including of valuable Court time and resources and impacts.[8]
4. Counsel for the applicant submitted that it was not the applicant's fault that these proceedings have been on foot for a long period. That is technically true. However last-minute adjournments cause wastage of a hearing fixture which would have been used to determine that case. The effect of which is that an adjournment of these proceedings at such short notice means another migration case could not be heard in their stead, which has the effect that the applicant will himself contribute to the delay in the migration docket as a whole, and therefore of some other applicant. Onwards the dominos fall.
5. Having regard to the chronology advanced for the applicant (see [19] above), I do not accept that the reason for the discourtesy with which the employed solicitor approached the Court, or the question of the adjournment, was because she was rushed. The tone and content of the (very brief) adjournment email would have been the work of but a moment. There was ample time between 18 and 27 August 2025 to ensure that both were appropriate, and conformed with her professional duties, in such a short but important piece of correspondence.
6. The solicitor for the first respondent has given evidence that he neither saw, nor approved, the terms of the adjournment email. No doubt he now wishes he had, especially given his evidence (consistent with all the correspondence he authored) which makes plain that he clearly understood that the Court has a discretion and that the manner in which the employed solicitor for the applicant wrote to the Court was entirely unacceptable for all of the reasons which were given in Amirbeaggi (supra). I accept that evidence and his apologies. I also accept that, unlike in Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138, in the present case the first respondent has complied with Court orders and that there was, at the time the adjournment email was sent) no benefit to him in the proceedings adjourning. The consent by the first respondent, subject as it was on the applicant agreeing to ameliorate any relevant prejudice to him by agreeing to meet his costs thrown away, was an appropriate position for a model litigant to take in all the circumstances, conditioned by the proper understanding that the decision still rested with the Court.
7. As observed above, in all the foregoing circumstances, the decision as to whether to adjourn is an finely balanced one, considering the overarching purpose of the Court's practice and procedure, the applicant's wholesale lack of action until less than a week before the hearing after 7 years (or even, generously, 3 months since the final hearing was fixed), and the last-minute nature of the application.
8. Crucial among the factors though are the matters set out at [27] above. The failure of the applicant's representative to provide the proposed amended application and written submissions means that it is in fact the first respondent who would be prejudiced by the hearing proceeding in a way which could only be met by an adjournment, for which he was not otherwise advocating. If the submissions at [21] and [26] are to be accepted, there can then be no legitimate purpose for withholding those documents. Nor can it be suggested that the applicant (by his lawyers) did not do so because to provide the documents might be premature. That is said by reference to the submission at [17] by which they sought no further time to add additional grounds, but were content to file the proposed amended application and submission in their existing form on 2 September 2025.
9. It would, of course, have been entirely within my discretion to insist that the matter proceed. However, given the prejudice which has now arisen on the part of the Minister, caused by the withholding of the proposed amended application and submissions, I am reluctantly adjourning within a very narrow timeframe. I will not shut the applicant out, despite his delinquency. However, the conduct of the practitioners as outlined above, in particular by not being forthcoming with the applicant's documents, should not occur again (by them or by anyone).
10. The adjournment can be granted because I am, with some difficulty, able to accommodate it within said timeframe in my diary. However, that might not always be so, and it should not be the case that Judges are faced with situations such as that described in CVDQ (supra) at [25]. The Court recognises, as was observed in CVDQ, that this litigation is serious. However, so must applicants and those who represent them.
11. I will grant a brief adjournment, but not in the terms which the orders attached to the adjournment email advanced. Costs of the hearing event on 2 September 2025 will be reserved.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897 per Lee J at [1]

[2] CVDQ v Minister for Immigration and Multicultural Affairs (Adjournment Application) [2025] FCA 936 per Lee J at [1] (CVDQ)

[3] Annexure "01" to the August Affidavit

[4] There having also been an attempt at contact by telephone

[5] Which is the equivalent to s 37M of the Federal Court of Australia Act 1976 (Cth): see also CVDQ (supra) at [19] per Lee J

[6] AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [51] per Flick, Griffiths and Perry J; ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099 at [25] per Flick J; SZTYY v Minister for Immigration & Border Protection [2015] FCA 985 at [14] per McKerracher J and SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J

[7] See Amirbeaggi (Trustee), Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 at [12]

[8] DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564 at [183]