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

[2022] FedCFamC2G 692

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Davey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 692

File number(s):

PEG 210 of 2020

Judgment of:

JUDGE EGAN

Date of judgment:

24 August 2022

Catchwords:

MIGRATION – Where hearing and determination of Application for Review listed before the Court would be rendered nugatory in circumstances where applicant was otherwise prima facie entitled to the grant to him of a different work visa – where the applicant’s trade as a bricklayer was in great demand throughout the country – where the desirability of the applicant being employed in a needed trade was self-evident – application for adjournment of hearing granted.

Division:

Division 2 General Federal Law

Number of paragraphs:

6

Date of last submission/s:

22 August 2022

Date of hearing:

22 August 2022

Place:

Counsel for the Applicant:

Counsel for the First Respondent:

Solicitor for the First Respondent:

Second Respondent:

Brisbane

Mr L Boccabella

Ms C Taggart

Australian Government Solicitor

Submitting appearance save as to costs

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:	22 AUGUST 2022

THE COURT ORDERS THAT:

1.The matter be adjourned to 9.45am AEST on 2 December 2022.

2.The Applicant, by and through his lawyer, shall forthwith advise Judge’s Chambers and the lawyers for the First Respondent of any invitation being given to him by the Minister for him to apply for a subclass 491 Visa.

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

4.The costs of and incidental to today’s hearing be reserved.

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

1. On 17 August 2022, an Application in a Proceeding was filed on behalf of the applicant seeking an adjournment of the hearing of the matter which had been listed on 22 August 2022. That application was opposed by the lawyers for the first respondent.

2. The basis of the adjournment application was that although the applicant had proceedings on foot in this Court seeking review of the decision of the Administrative Appeals Tribunal (the Tribunal) to refuse a Subclass 486 Visa application, the applicant had, as a result of an amendment of Regulations promulgated with effect from 13 November 2021, qualified for the grant to him of a Subclass 491 (Skilled Work Regional) (Provisional) Visa. Exhibit 1, was an email from the lawyer for the applicant sent to Judge’s Chambers which attached documentation sent by the applicant to the Department of Home Affairs which was a necessary step required to be taken prior to the Minister subsequently inviting the applicant to make application for the Subclass 491 Visa.

3. It was submitted, inter alia, that in such circumstances, there was little utility in proceeding with a hearing before the Court involving complex technical considerations where, if the Subclass 491 Visa was granted, the review proceedings in this Court would have been otiose.

4. It was further argued in support of the adjournment application that the applicant’s trade of a bricklayer was an in demand occupation in Australia at the present time, and that rather than discouraging such tradespeople from undertaking work in Australia, such people should be encouraged to do so.

5. Over objection on the part of the First Respondent, the Court accepts the applicant’s submissions. The Court sees little utility in conducting Court hearings when events beyond the control of the parties have occurred after the filing of an Originating Application for Review in circumstances where such proceedings are most likely rendered nugatory.

6. The Court accordingly adjourns the matter to 2 December 2022.   

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

Associate:

Dated:       24 August 2022