Federal Court of Australia

EWV20 as litigation representative for AFF20 v Minister for Home Affairs [2021] FCA 272

ORDERS

THE COURT ORDERS THAT:

1.    On or before 30 April 2021, the respondent provide written answers to the applicant to the following interrogatories:

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

2.    Costs be reserved.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By an interlocutory application filed on 9 March 2021, the applicant seeks the leave of the Court under r 21.01 of the Federal Court Rules 2011 (Cth) (2011 FCRs) to order the respondent (the Minister for Home Affairs) to answer the following two interrogatories:

1.    How many minutes did your consideration (inclusive of reading time) of the brief from your Department occupy, before you made the decision to 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 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    The Minister opposes the interlocutory application.

Summary of procedural background

3    The matter has a long history. This is not the first time that the applicant has brought judicial review proceedings in relation to his immigration status. An earlier judicial review challenge ended with the parties consenting to the setting aside of a decision of another Minister to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Ct) (the Act). That occurred on 28 May 2020. Shortly thereafter, the Minister for Home Affairs made a fresh decision to cancel the applicant’s visa. It is that decision which is the subject of the applicant’s amended originating application filed on 8 September 2020 in the present proceeding.

4    It is sufficient for the purposes of this interlocutory application to set out paragraph 1 of that amended originating application:

1.    The Respondent failed to give proper, genuine, and realistic consideration to the merits of the applicant’s case.

Particulars

1.1.    The Respondent received a final copy of the briefing materials no sooner than 2.35pm on 28 May 2020.

1.2.    The Respondent made the decision to cancel the Applicant’s visa no later than 3.36pm on 28 May 2020.

1.3.    A previous decision to cancel the Applicant’s visa was quashed by the Federal Court on 28 May 2020, on the basis that the Minister (a different person from the Respondent) had failed to consider material relating to the refusal of the applicant’s subclass 866 Protection Visa application.

1.4.    The briefing material supplied to the Respondent was not settled until after the Federal Court made orders quashing the previous decision.

1.5.    The window between 2.35pm and 3.36pm was the maximum time taken to consider the applicant’s case according to the briefing material.

1.6.    The Respondent’s statement of reasons state that he considered the totality of the material, amounting to over 1200 pages.

1.7.    The Respondent’s statement of reasons also confirm that he took into account the additional 540 pages of material which it was conceded was not considered in relation to the cancellation of the Applicant’s visa on 11 December 2020.

1.8.    The briefing material supplied to the Respondent did not contain a separate summary of these new 540 pages, requiring the Respondent to review the entirety of the documentation relating to the Applicant.

1.9.    No person could read through these materials within 61 minutes and give proper, genuine, and realistic consideration to this material, in addition to the remaining issues in the case, which themselves were voluminous.

5    It is unnecessary to set out all the case management steps leading up to the present time. It is sufficient to note that consent orders were made on 26 February 2021 which vacated an earlier hearing date of 1 March 2021 and relisted the matter for hearing for one day only on 22 July 2021. Orders were also made for the filing of written outlines of submissions and other matters.

6    Various affidavits have been filed by the parties in the substantive proceeding, including an affidavit by the applicant’s instructing solicitor dated 22 December 2020.

7    The Minister has also filed in the substantive proceeding affidavits by two of his advisors, Mr Thomas Joseph Fleming (affirmed on 19 January 2021) and Mr Peter Martin Hosking (affirmed on 27 January 2021). Relevantly to the interlocutory application, Mr Fleming’s evidence includes describing his interaction with the Minister during the period 26-28 May 2020, when the second cancellation decision was made. He deposes that at approximately 3:30 pm on 26 May 2020, just prior to the Minister attending an appointment, he handed a folder of documents including the draft submission to the Minister and a draft statement of reasons, together with the attachments to the draft submission (which was in excess of 1200 pages). He also states in his affidavit that he said words to the following effect to the Minister when he handed over the folder of documents:

This is a matter that the Department wants you to look at as it is anticipated that the Court will be making orders tomorrow setting aside your decision. The Department has advised that you can look at this material before the Court makes the order. It wants to ensure you have adequate time to review this material before you make any decision. However, you can't sign the documents before the Court makes the order. I will let you know when that happens.

8    Mr Fleming’s affidavit annexed an email which he sent to his colleague, Mr Hosking, on 28 May 2020 at 3.00 pm. He told Mr Hosking that there was “a slight revision to this submission/documents provided to the Minister two days ago, date of Federal Court order changed to 28 May to reflect today’s events (this is on page three of the Submission and paragraph seven of the Statement of Reasons)”. The reference to the Court order is a reference to the consent order setting aside the first cancellation decision.

9    Mr Hosking gave evidence of his interactions with the Minister from26- 28 May 2020. I do not summarise his evidence, other than to note that he deposes that, at approximately 3.00 pm on 28 May 2020, he printed Mr Fleming’s email and its attachments (totalling 72 pages, which included the Department’s submission and the draft statement of reasons without attachments) and provided that material to the Minister. He added that he told the Minister that the documents were urgent and the Minister responded by saying words to the effect of “[j]ust wait there while I go through these documents”. He added that he waited while the Minister read the documents and then signed them. Mr Hosking does not state how long the Minister took to read the documents and whether or not he observed him reading all of them.

10    It is also relevant to note that, earlier in the present proceeding, the Minister produced redacted copies of his diary for the period 26-28 May 2020. The diary entries reveal that the Minister had multiple appointments during normal business hours on each of those three days. The Minister’s redacted diary entries for 28 May 2020 indicate, however, that he had no appointments on that day between 1.30 pm and 3.45 pm (noting that he did not receive the second tranche of documents from Mr Hosking until after 3 pm on that day).

Consideration and determination

11    The relevant principles guiding exercise of the Court’s discretion to permit the applicant in a judicial review proceeding to administer interrogatories are helpfully summarised by Jagot J in QJMV v Minister for Home Affairs [2021] FCA 255. In refusing leave to appeal from a decision of the Chief Justice to order the Minister to answer interrogatories (see QJMV v Minister for Home Affairs [2021] FCA 136), her Honour referred to the Full Court’s decision in Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327. The Full Court states there at [32] that a “bare allegation” in a judicial review challenge, in the absence of something more, would not suffice to require discovery or interrogatories. In other words, there needs to be “some evidence” upon which it is open to conclude that the matter into which enquiry is sought may be made out so that the interrogatories may be considered appropriate. Justice Jagot held that there was not sufficient doubt about the correctness of the Chief Justice’s decision granting leave to administer the interrogatories to have it reconsidered by a Full Court.

12    On the issue of substantial injustice, being a relevant matter in determining whether or not to grant leave to appeal, her Honour addressed a contention advanced by the Minister that judicial notice should be taken of the high volume jurisdiction under Pt 9 of the Act. Her Honour noted at [41] in QJMV that the applicant in that case objected to judicial notice being taken of that jurisdiction being of high volume. Her Honour then added that, even if judicial notice was taken of that matter, it was relevant that the primary judge ordered that answers be given to two confined interrogatories. Those interrogatories were limited to an identification of the time spent considering the Department’s brief and the question whether the Minister read the statement of reasons and, if so, the time spent considering that document. Having regard to the confined nature of the interrogatories, her Honour found that it was difficult to accept that there was any concern of impracticality.

13    The Minister’s principal ground for opposing leave being granted in the present proceeding related to the evidence given by Mr Fleming and Mr Hosking, as summarised above. The Minister submitted that the effect of this evidence contradicted the applicant’s pleaded case, which is to the effect that the Minister had a maximum period of 61 minutes on 28 May 2020 in which to consider the relevant documentation before making the second visa cancellation decision. Mr Lenehan SC (who appeared for the respondent) submitted that this evidence showed that the Minister had possession of the relevant documents (apart from the slight revision made to the materials provided on 28 May 2020) from 3.30 pm on 26 May 2020.

14    The Minister also submitted that the Court had a discretion whether or not to grant leave to administer the interrogatories, pointing to Jagot J’s reasons for judgment in QJMV at [43]. In that context, reliance was placed on an affidavit sworn by Mr Luke Morrish on 22 March 2021, who gave evidence as to the volume of cases under Pt 9 of the Act involving a responsible portfolio Minister. Mr Morrish deposed that for the financial year ended 30 June 2020, there were 110 personal decisions made by a Minister under Pt 9 of the Act. He said that during the period 1 July 2020 to 19 March 2021, the Minister for Home Affairs personally considered 601 individual Ministerial intervention requests under provisions concerning non-compellable powers and that, of these requests, the Minister made a decision not to intervene in 40 circumstances. Mr Morrish added that, during the period 1 July 2020 to 28 February 2021, 59 decisions were made by a portfolio Minister to refuse or cancel a visa under Pt 9 of the Act.

15    For the following reasons, I consider that leave should be granted to administer the interrogatories in the form sought by the applicant, with one modification to the proposed second interrogatory.

16    First, I do not accept the Minister’s contention that ground 1 of the amended originating application is answered by the evidence to be given by Mr Fleming and Mr Hosking. It is important to appreciate the current stage of the proceeding. Those two affidavits have been filed in respect of the substantive matter, and not in relation to the interlocutory application (even though they were relied upon for that purpose). It will be open to the applicant to cross-examine either or both of those witnesses at the substantive hearing. It is not possible to be confident at this stage that this affidavit evidence will survive any cross-examination. In view of that uncertainty, I do not accept that the Court should proceed at the moment on the basis that this evidence is a full answer to this aspect of the applicant’s pleaded case.

17    Secondly, the relevant diary entries as referred to above highlight the limited time the Minister had to consider the vast documentary material, including the draft statement of reasons.

18    Thirdly, although it may be noted that there appears to have been only two relatively minor amendments to the briefing documents on 28 May 2020, when compared with the material which Mr Fleming handed to the Minister on 26 May 2020, it will be a matter to determine at the trial whether the Minister had an adequate opportunity prior to the second visa cancellation decision on 28 May 2020 to give the requisite consideration to all the documentary materials.

19    Fourthly, I reject the submission that the Court should decline to grant leave in its discretion because of the “impracticalities” posed by the prospect of portfolio Ministers being swamped with interrogatories. It should not be assumed that every application to administer interrogatories will be granted. Each case will depend upon its own facts, having regard to relevant principles, including those provided by Wong and QJMV. Significantly, something more than a bare assertion is required before the Court will grant leave. For the reasons given above, that requirement is satisfied in the present case.

20    Fifthly, as Mr Alexsov (who appeared for the applicant) pointed out, if there is a concern that the grant of interrogatories will overwhelm portfolio Ministers, a simple solution is for a Minister to adopt the practice of noting on the file the time spent on considering documentary material provided to assist in decision-making under Pt 9.

21    Finally, Mr Lenehan SC accepted during the course of oral argument that the Minister could not point to any specific prejudice which would be caused by the interrogatories in the circumstances of this case, nor that it would disrupt the future conduct of the proceeding, given that the hearing is listed in late July 2021.

22    Mr Alexsov also explained that the proposed second interrogatory was intended to establish whether or not the draft statement of reasons signed by the Minster is in fact a statement of the true reasons for the second visa cancellation decision. I accept that submission but would add that I do not consider that it is necessary to administer the second part of the second interrogatory, which relates to how many minutes the Minister spent considering the draft statement of reasons specifically. The answer to the proposed first interrogatory, which relates to the amount of time spent by the Minister in considering the Department’s brief, will necessarily include the time he spent considering the draft statement of reasons, which formed part of that brief. As Mr Alexsov pointed out, the answers to the interrogatories may well be decisive in terms of the future conduct of the present proceeding.

23    For all these reasons the applicant should have leave to administer the proposed interrogatories, but with the second sentence of the proposed second interrogatory deleted.

24    The applicant failed to stipulate a time within which the interrogatories should be answered. Having regard to the scheduled hearing date of 22 July 2021, I consider that it is appropriate to give the Minister until 30 April 2021 to answer the interrogatories.

Associate:

Dated:    24 March 2021