POJARI v Minister for Immigration

[2016] FCCA 3047

FEDERAL CIRCUIT COURT OF AUSTRALIA

POJARI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3047

Catchwords:
MIGRATION – Withdrawal of application to court – costs – no order.

Applicant: ERIC POJARI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 10 of 2016

Judgment of: Judge Young

Hearing date: 22 November 2016

Date of Last Submission: 22 November 2016

Delivered at: Darwin

Delivered on: 22 November 2016

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Ms Newman

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 5 April 2016 be dismissed and there be no order for costs.

AND THE COURT NOTES:

The application was withdrawn.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 10 of 2016

ERIC POJARI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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.

Introduction

1. This was an application for review of a decision of the Administrative Appeals Tribunal dismissing an application to grant the applicant a spouse visa. The applicant had failed to appear at an interview with the Tribunal. 

2. The applicant decided to withdraw his application at the beginning of the hearing. The first respondent sought a costs order against him. These are my reasons for declining to make such an order.

3. In my view, having read the materials, while the dismissal of the application by the Tribunal was certainly open to it, particularly given that the applicant failed to appear, there are some other relevant matters.  The applicant was represented by a migration agent at the time.  On 21 December – that is a mere four days before Christmas – the applicant was invited to attend a hearing on 25 January 2016.  That invitation was sent to the migration agent. 

4. On 5 January the migration agent replied to the letter advising the department that it was inconvenient for him to be dealing with the matter as his office was closed for the Christmas break and he was, in fact, overseas.  Nevertheless, he said that he would try to locate the applicant.  There is no further correspondence as far as I can see in the court book. There was, for example, no further query from the department about whether the migration agent had been able to tell the applicant of the hearing appointment.

5. In any event, the applicant says that he ultimately received the advice from the migration agent after the day of the appointment. I do not make any particular findings about any of that but there is a clear issue of procedural fairness raised.  Although the evidence from the applicant was perhaps deficient in some respects, it appears that on the basis of the material alone that I have mentioned it was at least arguable by the applicant that he did not receive procedural fairness.  Again, I do not make any particular finding about that but I do observe that, in my view, the argument and the associated application for extension of time were not entirely without merit.

6. The applicant has also told me from the bar table that he consulted a lawyer, as I understand it, to whom he had been referred to by Legal Aid. He was not advised, he said, until yesterday that that lawyer was not appearing for him.  I might add that there has been no Notice of Address for Service filed by any lawyer and no indication to the Court that a lawyer was representing the applicant.

7. The applicant says he first received advice yesterday that he ought to withdraw his application.  I am assuming that the basis of that advice was Mr Pojari’s frank admission that he was no longer with the woman who was his sponsor for a spouse visa and he seemed to concede that on that basis his visa application was bound to fail in any event.  Nevertheless, I have some sympathy for what he says and I have no reason to doubt that he first received advice yesterday that he was not going to be represented and he should discontinue or withdraw his case.  He has acted on that promptly.

8. Given my general assessment of the matter and my general assessment that – without suggesting that the department has acted improperly – in view of its correspondence just before the Christmas break, the advice from the migration agent that there were difficulties contacting the applicant (and there does not appear to be any suggestion that the applicant absconded or has been anywhere else other than Darwin for the relevant period) its decision to proceed with the hearing without further inquiry was perhaps a little precipitate.  I decline to make a costs order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 25 November 2016