Davey v Minister for Immigration, Citizenship, and Multicultural Affairs
[2023] FedCFamC2G 524
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Davey v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 524
File number(s): PEG 210 of 2020 Judgment of: JUDGE EGAN Date of judgment: 20 June 2023 Catchwords: MIGRATION - COSTS – Where applicant became a prospective grantee of a different visa during the course of the proceeding– where Counsel for the applicant applied for an adjournment of the application for review in circumstances where the applicant was a tradesman who was in line for the grant to him of a different visa – where the applicant’s trade was in demand – where hearing adjourned on a number of occasions after the different visa question had been raised – where Minister ought to have objectively considered the prospects of success of the applicant being granted the different visa – where Minister’s application for costs refused. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 190 and 191. Division: Division 2 General Federal Law Number of paragraphs: 10 Date of last submission/s: 31 May 2023 Date of hearing: 7 March 2023 Place: Brisbane Counsel for the Applicants: Mr L Boccabella Solicitor for the Applicants: A.J Torbey & Associates Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance save as to costs Solicitor for the First Respondent: Australian Government Solicitor ORDERS
PEG 210 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DARREN PAUL DAVEY
First Applicant
KIMBERLEY ANNE REAY
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
20 June 2023
THE COURT ORDERS THAT:
1.The applicants shall forthwith file and serve a Notice of Discontinuance.
2.There be no order as to the costs of the proceeding.
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).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
Section 190 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (‘the Act’) is a provision which sets out the overarching purpose of the civil practice and procedure provisions of the Act. Section 191 of the Act provides that the parties to a proceeding are to act in accordance with the overarching purpose as defined.
Before the Court is an application for costs made on behalf of the first respondent. It is appropriate to set out the relevant history of the matter for the purpose of appreciating the order refusing such application.
The applicant filed an Originating Application for Review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 11 July 2020. Since that time, the matter has had what was submitted on behalf of the Minister ‘a protracted history’.
The matter was first listed for hearing on 16 August 2021 but was adjourned by order of His Honour Judge Kendall made on 2 August 2021. On that occasion, it was ordered that the matter be listed for final hearing on 15 February 2022. The orders made by His Honour did not either reserve costs, or make any order for the payment by the applicant of the costs thrown away by reason of the adjournment. The submissions filed on behalf of the Minister do not disclose any particular basis for this Court making any order for costs in respect of such adjournment, and the Court will not do so in circumstances where another Judge was seized of the matter at the time. If costs had been made an issue before such Judge, then presumably His Honour would have dealt with the issue.
Between the time of the making of the orders by His Honour Judge Kendall on 2 August 2021 and 15 February 2022, the Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021 was promulgated with effect from 13 November 2021. That enactment permitted the applicant to apply for a Western Australian State Government Nominated Subclass 491 Skilled Work Regional (Provisional) Visa. It was not seriously challenged at any hearing before the Court that the applicant was prima facie qualified for the grant to him of the relevant visa in his occupation as a brick layer.
The matter came before the Court on 23 February 2022 and relevant submissions were made by both parties on the substantive issues then before the Court. During the course of such hearing, Counsel for the applicant sought an adjournment on the basis that the applicant would shortly be in a position to make application for the relevant visa, and that the Court ought not to proceed to a final hearing of the application for review in circumstances where the applicant could very well be granted a visa which would render any such hearing otiose. Such application was refused, but by reason of a query raised by the court as to potential procedural fairness issues arising out of the conduct of the hearing before the Tribunal, the matter was adjourned for further consideration to be given by the applicant as to whether any amended application for review was intended to be filed. The applicant was granted leave to file and serve any amended application before 4pm on 23 March 2022, and the matter was adjourned for final hearing to 22 August 2022.
No amended application for review was filed on or before 23 March 2022. On 15 August 2022, the applicants filed an interlocutory application seeking a further adjournment to the hearing in order that they might amend their application for review. The Minister objected to such application, but the Court granted the application because of what was submitted on behalf of the applicant to be the good prospects of the applicant being granted the visa. The costs of and incidental to the adjournment were reserved by order of the Court made on 22 August 2022.
On 2 December 2022, the applicant was granted a further indulgence by the Court based upon the Court’s assessment as to whether or not it was reasonable for an adjournment application to be granted in the light of the applicant’s visa situation.
It transpired that the submission by Counsel for the applicant made on or about 23 February 2022, to the effect that it would only be a matter of time before the relevant visa was issued to the applicant, was prescient. The Court was alive to such outcome at the time of the first making of such submission on behalf of the applicant, but the Minister nevertheless pressed on in circumstances where the Court had indicated that in its view the applicant was a person whose particular trade skills were in demand. The Court took judicial notice of such fact having regard to labour shortages which had arisen throughout the Commonwealth due to the exodus from Australia of skilled workers due to the effects of the COVID 19 virus.
Had the Minister objectively considered the likelihood of the applicant being granted the relevant visa, the Minister could have agreed to the adjournment of the matter from as early as 15 February 2022. The Minister, it would seem, did not undertake such objective consideration.
The Court finds that the appropriate order in all circumstances is that there be no order as to costs. In so exercising its discretion, the Court has had regard to the tardy manner in which the applicant has sought to prosecute the application for review, but has been persuaded that the real reason why costs have been relevantly incurred was that insufficient regard was had by the Minister concerning the prospective realities of the applicant being granted the visa.
The application has not as yet been discontinued after the visa was granted. That should be done forthwith. Much Court time was taken up hearing applications which were unnecessary.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 20 June 2023
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