Okoh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2022] FedCFamC2G 785

Federal Circuit and Family Court of Australia

(DIVISION 2)

Okoh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 785    

File number(s):	DNG 5 of 2022
Judgment of:	JUDGE YOUNG
Date of judgment:	29 August 2022
Catchwords:	MIGRATION - review of decision of Administrative Appeals Tribunal – Court satisfied adjournment necessary
Division:	Division 2 General Federal Law
Number of paragraphs:	4
Date of hearing:	29 August 2022
Place:	Darwin
Solicitor for the Applicants:	Sentry Law
Counsel for the Respondents:	Mr Kay Hoyle
Solicitor for the Respondents:	Clayton Utz

ORDERS

DNG 5 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AMENAGHAWON BLOSSOM OKOH

First Applicant

GABRIEL OMOIGIADE OKOH

Second Applicant

ADELE EHINOMEN OKOH (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	29 AUGUST 2022

THE COURT ORDERS THAT:

1.The final hearing be vacated to 20 February 2023 at 10:00am before Judge Young.

2.Costs 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
Ex Tempore

JUDGE YOUNG

1. This is an application for review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) to refuse an adjournment in circumstances where there were secondary applicants for a visa and at that time the primary applicant was incarcerated in immigration detention.  The Tribunal refused to grant an adjournment to the secondary applicants in the visa application who are the applicants before me. The adjournment was refused on the basis that the applicants were unable to provide any information to the Tribunal about what they asserted was an application to revoke the cancellation of the primary applicant’s visa.  Implicit in that was an argument that if and when that cancellation was revoked, their automatic cancellation of visa, dependent upon the primary applicant’s visa, would not be properly revoked or cancelled.

2. Just before I came to the Bench this morning, my Associate provided me with an affidavit from the applicant’s solicitor, Mr McComber, attaching a decision of the Tribunal made today which, indeed, revoked the cancellation of the primary applicant’s visa. That was significant for a great many reasons, but most significantly for the hearing in front of me, it remedied a data deficiency in the applicant’s application.  That is, the need to show that any error by the Tribunal. The fact or the evidence of the fact of the revocation of the cancellation means that if there was unreasonableness, for example, in the refusal of the adjournment application, it was material.

3. The matter was stood down this morning so that Mr Kay Hoyle who appeared for the Respondent could seek some instructions.  Not surprisingly in all the circumstances, clear instructions have been difficult to obtain and the parties seem to agree that it is appropriate to adjourn the matter while the situation becomes clearer.  As Mr Kay Hoyle indicated to me it may well be that a hearing becomes unnecessary.  I accept that is very much on the cards having regard to what I have seen today.

4. I do not have time in my list for a re-hearing until February 2023.  So in all the circumstances I will simply vacate today’s date and I will adjourn the matter back to the migration team who will reallocate the hearing appropriately.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       20 September 2022

SCHEDULE OF PARTIES

DNG 5 of 2022
Applicants
Fourth Applicant:	FAVOUR IVIE OKOH