Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 1240

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kolora v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1240

File number(s):	BRG 431 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	3 June 2021
Catchwords:	MIGRATION – Where Tribunal said to have erroneously identified clauses of Schedule 2 to the Migration Regulations 1994 (Cth) when delivering its reasons – where no full agreement between the parties as to the extent of any claimed error – where it was in the interests of the due administration of justice that the applicant be granted leave to amend the application for review – orders accordingly.
Legislation:	Migration Regulations 1994 (Cth) sch 2
Number of paragraphs:	6
Date of last submission/s:	26 May 2021
Date of hearing:	26 May 2021
Place:	Brisbane
Solicitor for the Applicant:	Arshad and Chand Lawyers
Counsel for the Applicant:	Mr See
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the First Respondent:	Mr Byrnes
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:	3 JUNE 2021

IT IS ORDERED THAT:

1.The Applicant shall file and serve any Further Amended Application for Review, with such Further Amended Application to include detailed particulars of the ground or grounds for review sought be relied upon by the Applicant, on or before 4:00pm on 9 June 2021.

2.The Applicant shall file and serve a consolidated set of written submissions on or before 4:00pm on 30 June 2021.

3.The First Respondent shall file and serve a consolidated set of written submissions in response on or before 4:00pm on 21 July 2021.

4.The matter be adjourned for hearing to 9:45am on 28 July 2021 in the Federal Circuit Court of Australia sitting at Brisbane.

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

6.The costs of and incidental to the adjournment be reserved.

EX-TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN:

1. On 31 March 2021, this matter came before the Court in circumstances where there was asserted to be error on part of the Administrative Appeals Tribunal (‘the Tribunal’) member in the recording of the correct clause of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Submissions were made to the Court on such matter.

2. Because there was no agreement on that prior court hearing date, the matter was adjourned, and orders were made with a view to enabling the parties to try to resolve any uncertainty as to the identification of the applicable clause/s in the reasons of the Tribunal.  Both parties had accepted that there were errors.  Mr Byrnes of Counsel submitted that though there was an error, there had nonetheless been a correct approach adopted by the Tribunal member in the way in which reasons were delivered. 

3. Mr See, Counsel on behalf of the applicant, submitted that having had the opportunity to further closely examine the reasons of the Tribunal, a further three errors of the same kind were able to be identified.  Mr See has asked for the hearing today to be adjourned for the purpose of the applicant being granted leave to further amend the Application for Review, so that all claims of error might be identified with particularity, and further, that submissions might address the question as to whether the reasons of the Tribunal had, or had not, so departed from the norm as to be unable to be understood.

4. The Court considers that a party should not be shut out from making submissions on what might ultimately be a successful claim. 

5. In all of the circumstances, the Court considers it appropriate that the matter be adjourned so as to enable the applicant to further amend the Application for Review such that all relevant matters might be canvassed at the adjourned hearing.  The Court takes that course of action in circumstances where approaches have been made to the president of the Tribunal by the lawyers for the applicant seeking clarification of the matters raised before the Court.  There has as yet been no response to such correspondence, respectively dated 18 May 2021 and 25 May 2021.  It may be that there will be a response in the near future. 

6. The applicant is granted leave to amend its case so as to raise as issues all those matters which were the subject of submissions today, as so advised. 

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

Associate:

Dated:       3 June 2021