Federal Court of Australia

QJMV v Minister for Home Affairs [2021] FCA 255

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The Minister for Home Affairs pay QJMV’s costs of the application for leave to appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

The application

1    This is an application for leave to appeal against an order made by the primary judge, being Order 3 of the orders made on 24 February 2021 in QJMV v Minister for Home Affairs [2021] FCA 136 (order 3) which required the Minister for Home Affairs (the Minister) to answer two interrogatories. The order is as follows:

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 [of Home Affairs (the 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?

2    Leave to appeal is sought on three grounds. Those three grounds are as follows:

(1)    The learned primary judge’s order for interrogatories is attended with sufficient doubt to warrant reconsideration by the Full Court on the ground set out in the draft notice of appeal.

(2)    The draft notice of appeal raises a question of general importance insofar as it concerns the amenability of the applicant (the Minister) to interrogatories on the basis of a ‘bare assertion’ in cases where the Minister exercises personal powers under the Migration Act 1958 (Cth) (the Act).

(3)    Substantial injustice would result if leave were refused as the judgment in question, if left undisturbed, (a) would require the Minister to answer interrogatories in this case when they would otherwise not be required and (b) is likely to lead to the Minister becoming liable to answer interrogatories relating to aspects inherent in the decision-making process repeatedly in a high volume jurisdiction in cases where the Minister exercises personal powers under the Act.

3    The draft notice of appeal contains two grounds in the following terms:

(1)    The learned primary judge made a House v The King error by failing to consider whether the application for interrogatories was based on ‘bare assertions’ such that there was not a sufficient basis to make an order for interrogatories: House v The King [1936] HCA 40; (1936) 55 CLR 499.

(2)    On a re-exercise of the primary judge’s discretion, it should be held that the application for interrogatories is based on ‘bare assertions’ such that there is not a sufficient basis to make an order for interrogatories.

4    The principles to be applied in an application for leave to appeal are not in dispute. They are, first, whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court and, second, whether substantial injustice would result if leave were refused, supposing the decision is wrong.

5    The Minister, in comprehensive submissions both oral and written, also noted that the general requirement of showing substantial injustice:

…is an expression of judges, not of a statute, and that it was expressed simply as a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave to appeal.    

BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 at 759.

6    Accordingly, it was submitted for the Minister that it is open to the Court to take into account the fact that the legal issue raised by the proposed appeal is one of general public importance. This proposition must be accepted.

7    In the application for leave to appeal and the supporting submissions the Minister has identified what are said to be two issues of general importance.

8    The first concerns the amenability of the Minster to interrogatories in cases of this kind and in circumstances where, it is contended, the general trend in modern litigation has been strongly against orders for interrogatories.

9    The second concerns the tension in the authorities as to whether “mere relevance” is sufficient for interrogatories in judicial review proceedings or whether it is necessary that there be more than a “bare assertion” supporting the alleged error by the Minister in the exercise of the discretion. Relevant cases in this regard include WA Pines Pty Ltd v Bannerman [1980] FCA 94; (1980) 41 FLR 175 at 181–182; Minister for Immigration & Multicultural Indigenous Affairs v Wong [2002] FCAFC 327; Australian Securities Commission v Somerville, ANZ, Jenkins & Johns [1994] FCA 339; (1994) 51 FCR 38; Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578; O’Sullivan v Parkin [2008] FCAFC 134; (2008) 169 FCR 283; and SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609.

Sufficient doubt?

10    I will deal first with the question whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court.

11    The first observation is that the focus of this test is the decision of the primary judge, that is, the making of order 3 under which the Minister is required to answer interrogatories.

12    The Minister’s proposed appeal and the ground upon which the application for leave to appeal is made is that the primary judge made a House v The King error by failing to consider whether the application for interrogatories was based on “bare assertions” so that there was not a sufficient basis to make an order for interrogatories.

13    A few observations need to be made immediately.

14    I have before me the transcript of the hearing before the primary judge (the transcript), as well as the primary judge’s reasons for judgment explaining the orders he made in QJMV.

15    The matter came before the primary judge as a case management hearing. The entirety of the case management hearing, including the primary judge giving oral reasons for his decision, took place between 9.58 am and 10.50 am.

16    In the oral submissions for the Minister (there were no written submissions) no reference was made to any of the cases which the Minister has now identified as being relevant to the tension in the authorities between it being sufficient for the interrogatories to be relevant and whether it is necessary that there be something more than a “bare assertion” to support an order for interrogatories in a judicial review application. Further, no reference was made to the other two decisions upon which the Minister now places weight, Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; (2017) 256 FCR 455 and Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275. These decisions are said to support the Minister’s contention that there is in this matter nothing more than a “bare assertion” of error by the Minister as identified in ground 4 of the originating application (ground 4).

17    Ground 4 needs to be set out in full. It is as follows:

4. The Minister’s 501A(2) decision was only purportedly made by the Minister.

Particulars

(a)    The practice established by the Respondents:

a.    pursuant to which:

i.    at the start, there is identification by officers within the Department of an unfavourable [Administrative Appeals Tribunal (the AAT)] decision; and

ii.    at the end, there is a decision purportedly made pursuant to s 501A(2) or (3) to set aside the AAT decision and cancel the person's visa,

(the practice);

b.    where, as part of the practice:

i.    the record of the Minister's decision is a 'tick the box' document;

ii.    the purported 501A(2) or (3) decision is made on the basis of a brief that includes one set, and one set only, of lengthy reasons pre-drafted by the Department;

iii.    the pre-drafted reasons include, among other matters, reasons directed to show existence of the subjective jurisdictional fact - the Minister being satisfied that the decision to set aside the AAT decision and cancel the person's visa is in the national interest; and

iv.    the required satisfaction is supposedly reached by the Minister after he has considered, by engaging in an active intellectual process with the care and thoroughness appropriate to the national interest, voluminous materials which have been identified for him by Commonwealth officers as relevant.

(b)    It is to be inferred from:

a.    the practice;

b.    the nature of the brief to the Minister;

c.    the 'tick the box' decision record;

d.    the length of the reasons for decision, and the detailed assessing in those reasons of factual minutiae;

e.    the volume of materials included in the brief, being materials identified for him, by Commonwealth officers, to be relevant to the Minister's exercise of power;

f.    the position and responsibilities of the Minister within the Government, and within Cabinet;

g.    the matters considered by the Minister to be in 'the national interest'; and

h.    the relative insignificance of those matters,

that the practice has resulted in de facto delegation of the decision-making discretionary power in s 501A(2) of the Act.

(c) De facto delegation of the power in s 501A(2) is contrary to the Act. Parliament granted the discretionary power on the Minister, subject to the subjective jurisdictional fact of satisfaction by the Minister that his decision - to set aside the merits review decision that had been made by an independent tribunal, and to cancel a person's visa - be in the national interest.

(d) Further particulars may be given, after provision by the Respondents of the documents sought by the Applicant.

18    I raise these matters because the context of the contention that the primary judge failed to consider a relevant matter needs to be taken into account. The context was a case management hearing in which brief oral submissions were made without reference to any of the authorities that the Minister now submits are relevant to the exercise of the discretion.

19    In the oral exchanges between the primary judge and counsel appearing for the Minister it is apparent that counsel raised three issues for consideration.

20    First, that there could be no order for discoveries or interrogatories in circumstances where there was no acceptable justification for the making of such an order at that stage.

21    Second, that there was no ground advanced by the applicant alleging a failure to give proper, genuine or realistic consideration to the decision.

22    Third, in circumstances where the evidence indicated that the Minister received the brief over a month before the Minister made the decision, that the assertion of error by the Minister as set out in ground 4 rose no higher than a “bare assertion”.

23    The primary judge delivered ex tempore reasons rejecting the Minister’s submissions and ordering the interrogatories. In his ex tempore reasons the primary judge said:

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 [sic] for Immigration and Border Protection v Splendido [2019] FCAFC 132; [(2019)] 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.

24    It will be apparent that, as the Minister submits in this leave application, there is no reference in these paragraphs to counsel’s submission that ground 4 involved nothing more than a “bare assertion”.

25    It is impossible, however, to infer that the primary judge did not take this submission into account. It is difficult to accept any suggestion that in circumstances where the primary judge had just heard the oral submissions, including the oral submissions about the allegation in ground 4 involving a “bare assertion”, that the primary judge did not consider that submission in reaching the conclusions expressed at [9] – [13] of his Honour’s reasons. Relevant in this regard is that the oral submissions that were put were extremely brief and his Honour’s reasons for judgment – explaining what is, in essence, a procedural decision in a case management hearing – were given immediately thereafter and are equally brief.

26    It seems to me that there could be no real doubt that his Honour was well aware of the submission that had been made that ground 4 involved nothing more than a “bare assertion”. That said, I recognise that it is not possible from his Honour’s reasons alone to ascertain whether he considered that the interrogatories should be ordered merely because they were “relevant” to the resolution of ground 4 or was in fact satisfied that more than a “bare assertion” of error” was involved. This, however, is unsurprising in circumstances where no issue of principle of the kind now identified was raised before the primary judge. As discussed below, the transcript assists in this regard.

27    Accordingly, if the relevant question is the process by which his Honour decided to make order 3, there is not sufficient doubt about the correctness of the decision of the primary judge to warrant it being reconsidered by the Full Court.

28    Another way of looking at this issue is whether the making of order 3 itself is attended by such doubt. In this regard it seems to me to be critical, and to be a distinguishing feature of the present case when compared to the cases on which the Minister relied (that is, Folau and Maxwell), that ground 4 expressly identifies, in the particulars in (a), the relevant evidence on which the applicant relies to found this ground. Further, in the particulars in (b), the originating application states that it is to be inferred from that evidence that there has been a de facto delegation of the Minister’s decision making power.

29    That is, it is apparent that on the face of the originating application itself, there is more than a “bare assertion” unsupported by any evidence. In this regard, it is important to note that in Wong the Full Court identified at [31] that the case was not one where there were already documents available to the applicant to support the contention that the Minister had acted for some extraneous purpose. In [32] of Wong the Full Court identified that a mere allegation, “in the absence of something more”, would not suffice to require discovery or interrogatories. They continued at [32] as follows:

What that something more is will depend on the particular circumstances of the case. In some cases (the present is not one) there may be evidence upon which it is open to conclude that the matter into which enquiry is sought may be made out so that discovery or interrogatories may be appropriate. In other cases it may be possible by reference to known facts to draw inferences which then found a suspicion. But mere suspicion not “grounded” on evidence or inference will not suffice.

30    In other words, the Full Court was saying only that there needed to be “some” evidence upon which it was open to conclude that the matter into which enquiry is sought to be made may be appropriate.

31    Given the ex tempore and abbreviated nature of the primary judge’s reasons, it is appropriate also to have regard to the transcript of the case management hearing during which the reasons were given. In oral exchanges with counsel for the Minister, the primary judge said that he considered that an acceptable justification for the interrogatories was “the nature of the application being brought”. As a result of the nature of the originating application, the primary judge said “there is a clear circumstantial need for knowledge as to how much time was spent doing what in relation to this personal decision”: transcript p3.

32    These observations also form part of the context in which the primary judge’s reasons at [9] – [13] need to be considered. It is apparent from [9] of his Honour’s reasons that the primary judge placed weight on what he considered to be the “comprehensive and clear application for review” which raised “a number of fundamental issues in relation to the personal exercise of power by a Minister of the Crown”. His Honour continued at [9] saying that “[g]round 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.” His Honour then identified at [10] that relevant to the claim was “how long the Minister took examining the matter.”

33    Given that ground 4 expressly identifies the evidence on which the applicant relied and contends that it is to be inferred from that evidence that there had been a de facto delegation of the Minister’s decision making power in s 501A(2) of the Act, I am unable to conclude in any event that there was not the “something more” (Wong at [32]) that was necessary to found the making of the order for interrogatories. From the terms of the primary judge’s reasons at [9], and with the benefit of the transcript, it may be inferred that the primary judge held the same view.

34    In other words, whether the focus is the process by which the primary judge decided to make order 3 or order 3 itself, it seems to me that there is not sufficient doubt about the correctness of the primary judge’s decision to warrant it being reconsidered by a Full Court.

Substantial injustice?

35    I am also not satisfied that there would be substantial injustice if leave to appeal were refused.

36    The first ground on which it is said that there would be substantial injustice is that the Minister would be required to answer interrogatories in this case where he would not otherwise be required to do so. However, this is commonplace in litigation – parties are routinely required by orders of the Court to do things which, but for the order, they would not be required to do.

37    It was also submitted for the Minister that he could not succeed in any appeal merely on the basis that interrogatories had been incorrectly ordered and the answers tendered. This is because, irrespective of the order being incorrect (if that is assumed to be the case), the answers would not be excluded as a result. The effect of this submission is that the Minister is said to be subject to substantial injustice in circumstances where the application would be decided on the basis of relevant evidence. I am unable to see how the Court deciding the application on the basis of relevant evidence could constitute substantial injustice.

38    The Minister also relied upon the contention that orders for interrogatories in this case, upon nothing more than a “bare assertion”, would be likely to lead to repeated orders for similar interrogatories in cases where the Minister exercises personal powers under the Act, and that the Court could take judicial notice that this is a high volume jurisdiction. Just as it is the case that it is recognised that the performance of ministerial duties would be impractical if a Minister were to spend substantial time in court being examined or cross-examined about decisions, so too it would be impractical if the Minister was required to answer interrogatories in relation to a high volume jurisdiction.

39    There are difficulties with this argument.

40    First, it assumes the correctness of the proposition that the primary judge made the order upon nothing more than a “bare assertion”. As I have said I do not accept that proposition. In the present case the evidence, and inference which is said to be drawn from the evidence, is apparent on the face of the originating application. While I accept that in some circumstances an originating application might merely purport to identify evidence from which it is said an inference of error could be drawn, that problem does not arise in the present case.

41    Second, QJMV has objected to judicial notice being taken of this being a high volume jurisdiction. There is substance in that objection but even if judicial notice is taken of the jurisdiction involving high volumes it is relevant that the primary judge ordered that answers be given to two confined interrogatories. The interrogatories are confined to an identification of the time spent considering the brief from the Department and the question whether the Minister read the statement of draft reasons and, if so, the time spent considering that document. The interrogatories are so confined that it is difficult to accept that any concern of impracticality arises.

42    Third, and as I have said, nothing was put to the primary judge about the authorities which are now said to involve tension, or decisions such as Maxwell and Folau, or that the order would be impractical because the Minister operates in a jurisdiction in which a high volume of decision making is involved. I do not accept the Minister’s proposition that the making of the order for interrogatories in this case is likely to lead to repeated orders for similar interrogatories in other cases. For one thing, it is not apparent that other cases would necessarily raise a contention as set out in ground 4. For another, it will be open to the Minister to argue whether an originating application in other proceedings does or does not give rise to more than a “bare assertion”, and to contend that “something more” is required as identified in Wong.

43    Fourth, it is relevant that in the present case no evidence or submissions were put to the primary judge that the making of the order for interrogatories would involve impracticality because of the number of decisions involving the personal exercise of powers by the Minister. The primary judge did not weigh that factor in the balance because there was no evidence about it and it was never put to him. In respect of any other application for interrogatories it would be open to the Minister to put such evidence before the Court as relevant to the exercise of discretion. This also supports my conclusion that the making of order 3 in the present case is not likely, in and of itself, to lead to repeated orders for similar interrogatories in other matters. Any application in another case would have to be determined by reference to all of the submissions put and all of the evidence adduced, including possible evidence from the Minister about such matters as impracticality.

44    Finally, I am not persuaded that this case is an appropriate vehicle for resolution of any tension in the authorities. The reason for this is that it is not apparent that the primary judge concluded other than what was involved was more than a “bare assertion” of error by the Minister by reason of the terms of ground 4 of the originating application.

45    In these circumstances, while I accept the submission for the Minister that it is a relevant consideration that the legal issue raised may be one of general public importance, I am not persuaded that this case in fact raises any such issue of general public importance. The primary judge made a decision of practice and procedure on an ex tempore basis, having regard to the limited submissions which had been put to him.

46    For these reasons, I am not satisfied that there would be any substantial injustice in this case if leave to appeal were refused supposing the decision of the primary judge is wrong.

Conclusion

47    For these reasons the application for leave to appeal should be dismissed.

Associate:

Dated:    19 March 2021