Federal Court of Australia

QJMV v Minister for Home Affairs [2021] FCA 136

ORDERS

THE COURT ORDERS THAT:

1.    To the extent that the orders below vary in terms of those pronounced on 24 February 2021 at the conclusion of the case management hearing, the orders below take effect and are in substitution for the oral orders.

2.    The proceeding be expedited.

3.    On or before 10 March 2021, the first respondent provide written answers to the applicant to the following interrogatories, leave for which to administer is granted without further formality under Part 21 of the Federal Court Rules 2011 (Cth), the relevant provisions of which are dispensed with:

(a)    How many minutes did your consideration (inclusive of reading time) of the brief from your Department occupy, before you made the decision to set aside the decision of the Administrative Appeals Tribunal and cancel the applicant’s visa?

(b)    Did you read the statement of draft reasons, which had been prepared by your Department and had been included in the brief, before you made the decision to set aside the decision of the Administrative Appeals Tribunal and cancel the applicant’s visa? If the answer is yes, how many minutes did your consideration (inclusive of reading time) of that particular document take?

4.    On or before 10 March 2021, the first respondent produce the following documents to the applicant in separate bundles clearly marked as pertaining to each category:

(a)    The brief to the Minister and all other documents that were before him at the time of the Minister’s s 501A(2) decision.

(b)    The brief to the Minister and all other documents that were before him at the time of the Minister’s decision that he wanted to consider his s 501A powers.

5.    On or before 10 March 2021, the second respondent produce all documents that were before the Commonwealth officer at the time of the Commonwealth officer’s decision that the decision of the Administrative Appeals Tribunal warranted the Minister’s attention. (For the avoidance of doubt, all documents to which that officer was required to have regard or did have regard, including any instruction, policy or procedural document, in making the Commonwealth officer’s decision that the decision of the Administrative Appeals Tribunal warranted the Minister’s attention, are documents that were before that officer.)

6.    As soon as possible, the parties agree upon the form of a notice under s 78B of the Judiciary Act 1903 (Cth) and subject to any debate as to its form, which debate can be settled by the Court, such notices be dispatched to the Attorneys-General of the Commonwealth, States and Territories within 14 days.

7.    As soon as reasonably practicable after 10 March 2021, the parties confer with regards to:

(a)    any further affidavits;

(b)    a draft index for an application book; and

(c)    the best and most expeditious way of dealing with the issues raised in the proceeding.

8.    The proceeding be stood over to a date to be fixed for case management in consultation with the chambers of the Chief Justice.

9.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is the first case management hearing in an originating application for review of a migration decision and of other decisions of a Commonwealth officer. There are three decisions the subject of the application for review.

2    The first is by the first respondent, the Minister, that was made or purportedly made on 7 December 2020 to cancel the applicant’s protection visa, pursuant to s 501A(2) of the Migration Act 1958 (Cth). This is the provision which empowers the Minister personally to set aside, in this case, the decision of the Administrative Appeals Tribunal (AAT) not to cancel the visa of the applicant. The applicant’s visa had been earlier cancelled by a delegate of the Minister. The decision was apparently made, though I make no finding, under s 501A(2). That power, which empowers the Minister personally to set aside a decision of the AAT, is predicated on the Minister being satisfied that the cancellation is in the national interest.

3    The second decision in respect of which a review is sought is the decision of the Minister made at some point not known to the applicant that he wanted to consider whether to exercise one of his powers to set aside the decision of the AAT.

4    The third decision is a decision of an officer of the Commonwealth, the Commonwealth being the second respondent, made on a date not known to the applicant, that the AAT decision warranted being brought to the Minister’s attention as an original decision for the purpose of consideration of the application of s 501A.

5    The second and third decisions, certainly the third decision, raise a question of the availability of s 39B(1) review in this Court over a non-statutory exercise of power or discretion. That issue was dealt with by Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 sitting as a first instance judge hearing an application under s 39B of the Judiciary Act 1903 (Cth). It has since been, on one view, approved by Full Courts, but there is a bench sitting later next month to deal with appeals which raise that very issue.

6    The second decision may or may not be non-statutory. If it is statutory, that is, a migration decision, it may be that leave is required for the application. Leave has been sought conditionally in the application for review and is sought in case management orders today. Both counsel agree, as must be right, that whether the second decision is a decision of a non-statutory character or a decision which is a migration decision depends upon the character of it and the circumstances, and may be bound up with the ultimate issues in the case. On that basis, Mr Barrington, who appears for the Minister, suggested that the question of leave or an extension of time be deferred. That is satisfactory to the applicant on condition that the Minister and the Commonwealth take the clear position today, which they do, that they will not take any point about time flowing from today onwards.

7    The Commonwealth is not present today. Mr Barrington’s instructors, Sparke Helmore Lawyers, and he, are briefed for the Minister. It is necessary for the Commonwealth to be a party as they have been made a party and they should be present. I do not see any particular conflict at the moment. It’s not inconceivable that a different position might arise for the officer to that of the Minister. In any event, consideration should be given by the Commonwealth to proper representation for itself in relation to the decision of the unknown, unnamed officer.

Case management

8    The applicant, when his visa was cancelled, approached the Department and in effect, recognising that he may be subject to immigration detention, gave himself up to the Commonwealth. He is in immigration detention and for that reason, I will grant such expedition as is necessary to reflect the liberty of the subject.

9    In a, if I may respectfully say, comprehensive and clear application for review and a clearly drafted five page concise statement, the applicant squarely raises a number of fundamental issues in relation to the personal exercise of power by a Minister of the Crown. Ground 4 of the application is a clearly drawn frontal attack on the nature of the decision that is said to have been made only, purportedly, by the Minister because of a form of delegation.

10    The decision in question was one to be made personally by the Minister and the matter of inappropriate delegation is one that has been referred to by judges of the Court and I only make reference descriptively to Assistant Manager for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 at [23] and Mason v Minister for Home Affairs [2020] FCA 1787 at [97], where Mortimer and Kenny JJ, respectively, referred to the question. Relevant to that claim is, in my view, how long the Minister took examining the matter. There is no particular claim alleging a lack of proper, genuine and realistic consideration but that does not mean that the length of attention to such an important decision to the applicant would not require an amount of consideration of papers.

11    As a matter of case management and fairness in the running of this case, I think it appropriate to accede to the request of the applicant to require two short interrogatories to the Minister in relation to his conduct of the file and the making of the personal decision. Neither is oppressive in its terms, as long as the Minister is given an appropriate length of time, given his other responsibilities, to bring the matter back to his mind and to review what he did and to answer the questions. The two questions are as follows:

(1)    How many minutes did your consideration, inclusive of reading time of the brief from your Department, occupy before you made the decision to set aside the decision of the AAT and cancel the applicant’s visa?

(2)    Did you read the statement of draft reasons which had been prepared by your Department and had been included in the brief before you made the decision to set aside the decision of the AAT and cancel the applicant’s visa? If yes, how many minutes did your consideration, inclusive of reading time, of that particular document take?

12    Mr Barrington, who appeared on behalf of the Minister, opposed the order of the making of interrogatories on the basis that they were premature and also that they were not directed to any issue in the proceeding.

13    It is evident from my understanding of the proceeding to date and from what I have said that I think the matters are relevant. As to prematurity, I do not think it premature. The suggestion that a court book be produced for dealing with this and that production will necessarily answer all questions is not persuasive, with the utmost respect. Central to the case will be what the Minister did in relation to the decision and, in my opinion, there is utility in the furthering of the case in an expeditious way if this knowledge is gained by the applicant early in the proceeding.

14    The applicant also seeks documents. The first category of documents is the brief to the Minister and all other documents that were before him at the time of the Minister’s decision under s 501A(2). The second is the brief to the Minister and all other documents that were before him at the time of the Minister’s decision that he wanted to consider his s 501A powers. The third category is all documents that were before the Commonwealth officer at the time of the Commonwealth officer’s decision that the decision of the AAT warranted the Minister’s attention. For the avoidance of doubt, that request includes all documents to which that officer was required to have regard or did have regard, including any instruction, policy or procedural document, in making the Commonwealth officer’s decision that the decision of the AAT warranted the Minister’s attention.

15    Mr Barrington put the submission that this too was premature and likely to be unhelpful and that the better course was to prepare a court book and to see what evidence was thereafter necessary. With respect, I do not agree. This is in the nature of a notice to produce to the respondents and there will be clear evidential assistance in running of the case and a clarity of understanding of what documents satisfy each of the three categories. The documents are to be produced separately for each category. If there be repetition, that repetition should take place because it may be important to understand, with clarity, what documents answer each category.

16    The production of the third category of documents affects the Commonwealth. As I indicated previously, the Commonwealth is technically not here, albeit the Minister is here. I will permit the Commonwealth, of course, to seek to set aside an order made in its absence but it had notice of today and there may have simply been an oversight in assuming that the Minister’s appearance would suffice.

17    The applicant seeks that the interrogatories be answered and the documents be produced by 3 March 2021, which is next Wednesday. I am not prepared to require the Minister to answer the interrogatories by that time. I appreciate that I will order expedition but the Minister of the Crown is entitled to deal with this matter in the context and circumstances of all his other important responsibilities. I will order that the interrogatories be answered and the documents be produced by 10 March 2021.

18    After the documents are produced and the interrogatories answered, the appropriate order is that the parties confer with regard to any further affidavits and a draft index for an application book.

19    After the hearing and the pronouncement of orders, I considered some variation was necessary. The parties were not heard on the changes. If any party wishes to further vary the orders he or it has liberty to apply.

Associate:

Dated:    24 February 2021