Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 669

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 669

File number(s):	BRG 431 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	31 March 2021
Catchwords:	MIGRATION – Where alleged errors in the reasons of Tribunal brought to the attention of the First Respondent’s Counsel at the time shortly prior to the commencement of the hearing – where Counsel had not had an opportunity to consider the effect of such allegation – where matter adjourned in the interests of justice – costs reserved.
Legislation:	Migration Regulations 1994 (Cth), Schedule 2.
Number of paragraphs:	6
Date of last submission/s:	31 March 2021
Date of hearing:	31 March 2021
Place:	Brisbane
Counsel for the Applicant:	Mr See
Solicitor for the Applicant:	Arshad and Chand Lawyers
Counsel for the First Respondent:	Mr Byrnes
Solicitor for the First Respondent:	Sparke Helmore
Second Respondent:	Submitting appearance save as to costs

ORDERS

BRG 431 of 2020

BETWEEN:

ALUMECI KOLORA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	31 MARCH 2021

IT IS ORDERED THAT:

1.The hearing of the matter be adjourned to 9.45 am on 26 May 2021.

2.The Applicant shall by 4.00 pm on 1 April 2021, advise the lawyers for the First Respondent as to what errors are submitted to be evident in the reasons of the Administrative Appeals Tribunal member in the decision handed down on 3 July 2020.

3.The lawyers for the First Respondent shall by 4.00 pm on 9 April 2021, indicate to the lawyers for the Applicant whether there is full or partial agreement, and if so, what agreement, with the Applicant’s claims as to error.

4.If necessary, so as to resolve any disagreement as to the meaning and effect of the reasons of the Administrative Appeals Tribunal, the parties shall seek clarification from the Registrar of the Administrative Appeals Tribunal in that regard.

5.Each party have liberty to apply on the giving of two (2) days’, each to the other.

6.Costs of today’s hearing be reserved.

EX-TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN:

1. This matter came before the Court today in circumstances where after Counsel for the applicant was called upon to commence submissions on behalf of the applicant, a submission was made that, in two respects, the Administrative Appeals Tribunal Member was wrong when referring to parts of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). It was asserted on behalf of Counsel for the applicant that paragraphs 7 and 18 of the reasons of the Tribunal contained incorrect references to clauses of such Schedule.

2. When asked if he had had a chance to consider the effect of any error, as submitted by Counsel for the applicant, Mr Byrnes, as Counsel for the first respondent, indicated that he had not had such an opportunity.

3. Counsel for the applicant conceded that had earlier notice of such assertion been given as to the submitted errors in paragraphs 7 and 18 of the decision, an agreement as to whether or not there were in fact errors might have been reached with the first respondent. 

4. In circumstances where there is no such agreement, and further in circumstances where no party should be disadvantaged in any hearing, the Court considers that it is necessary that this matter be adjourned so that the position is clarified. 

5. One would hope that consensus might be reached between the parties as to what the correct position is before further investigations are made as to the intentions of the Tribunal member at the time of the handing down of the decision. 

6. It is unfortunate that in circumstances such as the present, further costs might be incurred, but of paramount importance is the due administration of justice.  This Court is not of the view that there can be a due administration of justice in circumstances such as the present.  Accordingly, the matter is adjourned for further hearing. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       15 April 2021