FEDERAL COURT OF AUSTRALIA

GNHW v Minister for Immigration and Multicultural Affairs [2025] FCA 990

ORDERS

THE COURT NOTES THAT:

A.    The first respondent has informed the Court that, for the purposes of this proceeding, he admits the following facts:

(a)    the findings of fact made by the Court in paragraphs 39-50 (in redacted form) of TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 (TXCM);

(b)    at the time of the applicant’s review proceeding before the second respondent (being review number 2024/9326):

(i)    discussions at a very high level of Executive Government were occurring between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru;

(ii)    those discussions included discussions about the potential removal from Australia to Nauru of persons affected by the decision of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (the NZYQ cohort);

(iii)    the applicant was part of the NZYQ cohort; and

(iv)    the applicant himself was not the subject of any specific mention in those discussions between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru; and

(c)    the applicant continues to be part of the NZYQ cohort.

B.    The first respondent has provided the applicant with a copy of the documents referred to in TCXM at [42]-[43], [46]-[47] and [49], being:

(d)    a letter from the Minister for Home Affairs to the President of Nauru dated 31 January 2025 and its attachment (see TCXM at [42]-[43]);

(e)    a letter from the President of Nauru to the Minister for Home Affairs dated 7 February 2025 (see TCXM at [46]);

(f)    a letter from the President of Nauru to the Minister for Home Affairs dated 10 February 2025 (see TCXM at [47]); and

(g)    a letter from the Minister for Home Affairs to the President of Nauru dated 12 February 2025 (see TCXM at [49]).

THE COURT ORDERS THAT:

Discovery

1.    By 5 September 2025, and in accordance with order 2, the first respondent give discovery of documents:

(a)    within the following categories of documents:

(i)    documents provided by the Commonwealth of Australia to the Republic of Nauru, or by the Republic of Nauru to the Commonwealth of Australia, in the period 1 September 2024 to 30 January 2025 containing a draft or proposed third country reception arrangement or arrangements (within the meaning of s 198AHB of the Migration Act 1958 (Cth)) between the Commonwealth of Australia and the Republic of Nauru;

(ii)    documents provided by the Commonwealth of Australia to the Republic of Nauru in the period 1 September 2024 to 6 February 2025 referring specifically to the applicant (whether by name or other means of identification) or to the applicant’s personal characteristics (such as health information or criminal record);

(iii)    documents created in the period 1 September 2024 to 5 February 2025 which refer specifically to the applicant (whether by name or other means of identification) and which concern the removal of the applicant from Australia pursuant to a third country reception arrangement within the meaning of s 198AHB of the Migration Act 1958 (Cth);

(b)    of which, after a reasonable search, the first respondent is aware; and

(c)    that are, or have been, in the first respondent’s control within the meaning of Schedule 1 to the Federal Court Rules 2011 (Cth).

2.    The first respondent is to give discovery of documents by:

(a)    filing a verified list of documents in accordance with rule 20.17 of the Federal Court Rules 2011 (Cth); and

(b)    producing the documents, identified in the verified list of documents, in electronic format (excluding the documents subject to a claim of privilege).

3.    The applicant’s interlocutory application filed on 4 July 2025 otherwise be dismissed

Amendments to the originating application

4.    The applicant file and serve any application to amend his originating application by 12 September 2025.

5.    Within 7 days of any application being filed and served in accordance with paragraph 4, the first respondent file and serve a notice stating whether he consents to or opposes the application.

Submissions and further evidence

6.    By 25 September 2025, the applicant file and serve:

(a)    any further affidavit evidence upon which he intends to rely; and

(b)    an outline of submissions, limited to 10 pages.

7.    By 10 October 2025, the first respondent file and serve

(a)    any affidavit evidence upon which he intends to rely; and

(b)    an outline of submissions, limited to 10 pages.

Authorities

8.    By 17 October 2025, the parties file and serve an electronic joint bundle of authorities and legislation in text-recognised PDF format and which contains electronic bookmarks to each document in the bundle.

Hearing

9.    The proceeding be listed for hearing at 10.15 am on 20 October 2025.

Other matters

10.    Costs, including the costs of the interlocutory application filed on 4 July 2025, be reserved.

11.    There be liberty to apply on three days’ notice.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    On 14 November 2024, a delegate of the Minister for Immigration and Multicultural Affairs (Minister) decided to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant the applicant a Protection (Class XA) Subclass 866 visa (protection visa) on the basis that the applicant did not pass the character test. The applicant was released from immigration detention into the community on a Subclass 070 – Bridging (Removal Pending) Visa (Bridging Visa R) (BVR). On the same day, the applicant applied to the Administrative Review Tribunal (Tribunal) for a review of the delegate’s decision.

2    On 22 January 2025, the Tribunal held a hearing in relation to the review of the delegate’s decision. The applicant was unrepresented at the hearing; however, he had been assisted by Victoria Legal Aid (VLA) to provide written submissions to the Tribunal.

3    On 6 February 2025, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

4    On 13 March 2025, the applicant applied to the Federal Court seeking judicial review of the Tribunal’s decision. In support of that application, the applicant filed an affidavit of Zoe Prince, a legal practitioner at VLA, affirmed on 12 March 2025.

5    On 23 May 2025, I made an order that the Minister file and serve a Court Book which contains a copy of the documents before the Tribunal in the proceeding below, which was filed on 20 June 2025.

6    On 4 July 2025, the applicant filed an interlocutory application seeking discovery from the Minister (discovery application). By the discovery application, the applicant sought an order that the Minister discover all documents that are within the Minister’s possession, custody or control, which fall into the following three categories:

(a)    Documents, however described and including but not limited to agreements, draft agreements, memoranda and correspondence, constituting, proposing or describing a third country reception arrangement or arrangements within the meaning of s 198AHB of the Act between:

(i)    Australia and the Republic of Nauru; and

(ii)    Australia and any other country;

for the period 1 September 2024 to 16 February 2025.

(b)    Documents referring to, proposing or discussing:

(i)    any criteria for the selection of non-citizens for removal to Nauru or any other country pursuant to an existing or proposed third country reception arrangement;

(ii)    consideration of the number of non-citizens who may be removed to Nauru or any other country pursuant to an existing or proposed third country reception arrangement; and/or

(iii)    the process for the obtaining or the grant of a permission to enter or remain in Nauru or any other country pursuant to an existing or proposed third country reception arrangement;

for the period 1 September 2024 to 16 February 2025.

(c)    Documents including memoranda, file notes, briefing notes and correspondence of which any person within the Minister’s Department was the author or recipient, referring to any existing or proposed third country reception arrangement, and any of the matters referred to in (b), between 1 September 2024 to 16 February 2025.

7    In support of the discovery application, the applicant relied on written submissions dated 4 July 2025, and the Minister relied on written submissions dated 23 July 2025.

8    The discovery application was heard on 8 August 2025. At the hearing, both the applicant and the Minister modified their respective positions. At the conclusion of the hearing, I requested both the applicant and the Minister to file a form of orders acceptable to them to resolve the discovery application.

9    In response to the Court’s request, the applicant filed proposed orders for discovery in the following form:

1.    The first respondent discover the following documents within the possession, custody or control of the first respondent to the applicant within 14 days of the date of the Court’s order:

(a)    Documents falling within the definition of an ‘arrangement’ under s 198AHB(5) of the Migration Act 1958 (Cth), namely “an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding”, and any draft or proposed arrangement, between Australia and the Republic of Nauru, created or transmitted between 1 September 2024 and 7 February 2024.

(b)    Documents referring to, proposing or discussing:

i.    any criteria for the selection of non-citizens for removal to Nauru or any other country pursuant to an existing or proposed third country reception arrangement; and/or

ii.    consideration of the number of non-citizens who may be removed to Nauru or any other country pursuant to an existing or proposed third country reception arrangement,

created or transmitted between 1 September 2024 and 7 February 2024.

(c)    The documents described in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [40] and [41].

10    The Minister filed proposed orders for discovery in the following form:

THE COURT NOTES THAT:

A.    By interlocutory application filed with the Court on 4 July 2025, the applicant sought an order for discovery by the first respondent of certain specified categories of documents. The first respondent opposed that application, including because the specified categories of documents were too broad.

B.    The Court heard the interlocutory application on 8 August 2025, at which time the first respondent informed the Court that, for the purposes of this proceeding:

I.    the first respondent accepts the facts found by Moshinsky J in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [39]-[50];

II.    the first respondent has provided the applicant with a copy of the documents referred to in TCXM at [42]-[43], [46]-[47] and [49], being:

a.    a letter from the Minister for Home Affairs to the President of Nauru dated 31 January 2025 and its attachment (see TCXM at [42]-[43]);

b.    a letter from the President of Nauru to the Minister for Home Affairs dated 7 February 2025 (see TCXM at [46]);

c.    a letter from the President of Nauru to the Minister for Home Affairs dated 10 February 2025 (see TCXM at [47]); and

d.    a letter from the Minister for Home Affairs to the President of Nauru dated 12 February 2025 (see TCXM at [49]); and

III.    the first respondent also accepts the following facts:

a.    at the time of the proceeding before the second respondent in GNHW and Minister for Immigration and Multicultural Affairs (2024/9326):

i.    discussions at a very high level of Executive government were occurring between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru;

ii.    those discussions included discussions about the potential removal from Australia to Nauru of persons affected by the decision of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (the NZYQ cohort);

iii.    the applicant was part of the NZYQ cohort; and

iv.    the applicant himself was not the subject of any specific mention in those discussions between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru; and

b.    since the time of the proceeding before the second respondent in GNHW and Minister for Immigration and Multicultural Affairs (2024/9326), the applicant has continued to be part of the NZYQ cohort.

C.    Having regard to:

I.    the facts accepted by the first respondent for the purposes of this proceeding;

II.    the documents already provided by the first respondent to the applicant for the purposes of this proceeding; and

III.    the particulars to ground 3 of the applicant’s originating application filed on 13 March 2025;

the scope of discovery to be given by the first respondent is properly confined to documents in the following categories:

IV.    for the period from 1 September 2024 to 12 February 2025 (inclusive), documents comprising any third country reception arrangement or arrangements (within the meaning of s 198AHB of the Migration Act 1958 (Cth)) between the Commonwealth of Australia and the Republic of Nauru;

V.    for the period from 1 September 2024 to 6 February 2025 (inclusive), documents provided by the Commonwealth of Australia to the Republic of Nauru referring to the applicant by name, or by client ID, or by way of criminal record or health information.

THE COURT ORDERS THAT:

1.    By no later than 4.00pm on 29 August 2025, the first respondent give non-standard discovery, pursuant to rr 20.16 and 20.17 of the Federal Court Rules 2011 (Cth), by serving on the applicant a list of documents in the following categories:

(a)    for the period from 1 September 2024 to 12 February 2025 (inclusive), documents comprising any third country reception arrangement or arrangements (within the meaning of s 198AHB of the Migration Act 1958 (Cth)) between the Commonwealth of Australia and the Republic of Nauru; and

(b)    for the period from 1 September 2024 to 6 February 2025 (inclusive), any documents provided by the Commonwealth of Australia to the Republic of Nauru referring to the applicant by name, or by client ID, or by way of criminal record or health information.

2.    The interlocutory application filed on 4 July 2025 otherwise be dismissed.

11    As requested by the Court, each of the parties also provided proposed orders timetabling the proceeding to a hearing. Those orders are uncontroversial. However, the applicant also sought an order for leave to file an amended originating application in the form provided to the Court with the proposed orders. That application was not foreshadowed at the hearing of the discovery application, the applicant has not filed an application seeking that leave, and the Minister has not had an opportunity to respond to the application. In those circumstances, I have disregarded the proposed amended originating application in determining the discovery application, and the proposed amendment is dealt with in timetabling orders.

12    For the reasons below, I have made orders for discovery which adopt aspects of both parties proposed orders.

Background to the discovery application

13    In making its decision, the Tribunal was required to consider the legal consequences of its decision for the applicant, including having regard to Australia’s non-refoulement obligations (cl 9.1 of Direction No 110 made under s 499 of the Act). The Tribunal noted that, if the protection visa was not granted, there are a range of potential legal consequences, including the likelihood of the applicant becoming subject to detention and/or removal as an unlawful non-citizen (at [120]). The Tribunal observed that, as the applicant is the subject of a protection finding made by a delegate of the Minister on 22 November 2024, he has already been granted a BVR and released from immigration detention by the Department and he will not become unlawful as a result of the refusal. Therefore, the applicant will remain in the community following the Tribunal’s decision, either as the holder of a BVR or as the holder of the protection visa (at [123]).

14    At the Tribunal hearing, the applicant submitted and the Tribunal accepted that the applicant may become subject to removal to a third country under provisions enacted by the Commonwealth following the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (NZYQ) (at [134]). In that regard, it can be noted that the Commonwealth enacted the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) which introduced a new regime for holders of BVR visas, and subsequently enacted ss 76AAA and 198AHB by the Migration Amendment Act 2024 (Cth), which came into force on 5 December 2024. Relevantly, s 198AHB of the Act provides as follows:

198AHB Power to take action etc. in relation to third country reception arrangement

(1)    This section applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.

(2)    The Commonwealth may do all or any of the following:

(a)    take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(b)    make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(c)    do anything else that is incidental or conducive to the taking of such action or the making of such payments.

(3)    To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

(4)    Nothing in this section limits:

(a)    any other power or duty under this Act; or

(b)    the executive power of the Commonwealth.

(5)    In this section:

    action includes action in a foreign country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

third country reception functions, of a foreign country, means the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.

15    At the Tribunal hearing, the applicant submitted that, while it is unclear whether a third country will become available to receive the applicant, it is fanciful to imagine that any potential third country will be a well-resourced, industrialised country with legal protections for persons transferred there. The applicant submitted that there are no guaranteed minimum standards of treatment upon removal to a third country and conditions in the country are likely to be highly oppressive and include detention (at [135]).

16    In response, the Minister submitted to the Tribunal that “that there were no third country removal options for the Applicant” (at [136]). That submission assumes significance on the discovery application. On the basis of that submission, the Tribunal reasoned that it was not possible to assess the level of legal protections or conditions that persons removed to a third country might encounter, as no such country had been identified (at [138]).

17    In making its decision, the Tribunal was also required to consider the extent to which the applicant would face an impediment, or impediments, in establishing himself and maintaining basic living standards if removed from Australia to his home country in the context of what is generally available to other citizens of that country (cl 9.2 of Direction No 110 made under s 499 of the Act). The Tribunal observed that, as the applicant is subject to a protection finding in respect of his home country, South Sudan, he cannot be removed to that country. The Tribunal also concluded that there is not any real likelihood that the applicant’s protection finding will be set aside pursuant to s 197D as a consequence of the Tribunal’s decision. Relevantly, the Tribunal also concluded that “as there is no real prospect of the Applicant’s removal to any identifiable country in the reasonably foreseeable future, this consideration should be regarded as neutral” (at [143]).

18    By ground 3 of the application for judicial review, the applicant alleges as follows:

The first respondent breached his obligation under s 56(1) of the Administrative Review Tribunal Act 2024 (ART Act) to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review and achieve the objective in s 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived the Tribunal of the ability to consider matters it was required to consider.

Particulars

a.     The first respondent breached his obligation under s 56(1) of the ART Act to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review and achieve the objective in s 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived the Tribunal of the ability to consider matters it was required to consider.

b.     The first respondent told the Tribunal that “her instructions were that there were no third country removal options for the Applicant.”: Reason[s], [136].

c.     At Reasons [138] the Tribunal accepted that removal to a third country was possible but “[a]s no such country has been identified, it is not possible to assess the level of legal protections or conditions that persons removed to any such country might encounter.”

d.     On 16 February 2025, 10 days after the Tribunal’s decision, the Australian Government announced a deal with the Republic of Nauru to receive the removal of three persons whose visas had been cancelled on character grounds to Nauru, which necessarily required there to be a third country reception arrangement with Nauru under s 198AHB of the Act.

e.     It can be inferred that the first respondent was aware of the existing or impending arrangement with Nauru to accept the removal of persons in the applicant’s position before the time of the Tribunal’s decision.

f.     The submissions of the first respondent to the Tribunal gave the impression that there was no existing or impending arrangement with any third country to accept the removal of persons from Australia who could not be removed to their country of origin.

g.     The failure of the first respondent to inform the Tribunal of the existing or impending arrangement with Nauru constituted a breach of s 56(1) of the ART Act.

h.     But for the breach of s 56(1) of the ART Act, the Tribunal would have considered, and been required to consider, the extent of impediments that the applicant would face if removed to Nauru, and might not have weighed that consideration as “neutral”.

i.     But for the breach of s 56(1) of the ART Act, the Tribunal would have needed to consider the prospect that the applicant may refuse to co-operate with removal to Nauru, if an invitation was made, and weigh the impact of detention in Australia as a consequence of that non co-operation.

j.     The Tribunal was thereby prevented from properly considering the applicant’s submissions and/or properly assessing the considerations in the Ministerial Direction, resulting in jurisdictional error.

k.     Further and alternatively, the applicant was denied procedural fairness, in that he could have made submissions about the specific impediments he would face on removal to Nauru if the prospect of removing persons in his position to Nauru had been disclosed.

19    As can be seen from the foregoing, the particulars to ground 3 refer to an announcement made by the Australian Government on 16 February 2025, 10 days after the Tribunal’s decision, of an arrangement reached with the Republic of Nauru under s 198AHB of the Act to receive the removal of three persons whose visas had been cancelled on character grounds.

20    On 2 June 2025, the reasons for decision of the Court in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 (TCXM) were made available publicly. In those reasons, Moshinsky J recorded the following factual findings concerning the negotiation of the arrangement with the Republic of Nauru which had been announced by the Australian Government on 16 February 2025 (emphasis in original, and redactions as made to the publicly available copy of the Court’s reasons):

Communications between Australia and Nauru (September 2024 to 12 February 2025)

39     Between September 2024 and January 2025, a number of meetings took place between representatives of Australia and Nauru at which they discussed potentially resettling the cohort of persons affected by the NZYQ decision in Nauru. Some of these meetings involved the President of Nauru and the Minister for Home Affairs (Australia). Some of the meetings involved Ms Strugnell on behalf of Australia and Secretary Daniel Eoe, the Secretary of the Department of Multicultural Affairs of Nauru, and Secretary Jay Udit, the Secretary for Justice and Border Control of Nauru, on behalf of Nauru.

40     During the same period, there were written communications between the representatives of the two countries. Copies of those communications are included in the Closed Hearing Book and were the subject of the cross-examination of Ms Strugnell. The written communications included [REDACTED].

41     On 31 January 2025, the Minister for Home Affairs (Australia) and the President of Nauru held a meeting in Nauru. Ms Strugnell was present at the meeting and the evidence includes a Record of Conversation in relation to the meeting.

42     Following the meeting, the Minister for Home Affairs (Australia) provided a letter dated 31 January 2025 to the President of Nauru, attaching an “Interim Third Country Reception Arrangement”. The letter included:

Thank you … for Secretary Eoe’s letter of 13 November 2024 to the Australian Government offering to assist with the reception and settlement process of select persons who cannot be returned to their home country. As you are aware, recent amendments to our Migration Act confirm and enhance Australia’s ability to undertake third country reception arrangements and this proposal marks the first such arrangement under these new provisions.

As discussed at our meeting on Friday 31 January 2025, preliminary discussions between our governments have taken place to socialise details of such a reception arrangement including:

    A minimum 30 year agreement period where financial support would be provided directly to the Government of Nauru in recognition of the numbers settled and the requirement for Nauru to fully settle and integrate the cohort as part of the Nauruan population

    Options for funding models for calculating the amount of support payable to the Government of Nauru as may be agreed

    Broad parameters for a phased approach to identify and transfer cohorts of people

    Non-negotiable conditions posed by Australia for any such persons settled

As advised, Cabinet authority has now been provided and negotiations can proceed at our senior officer level to finalise a formal settlement and funding arrangement.

I have now asked that my senior officers work with Nauruan officials to consider an initial settlement of up to three individuals as a first cohort. This approach will ensure that each Government’s respective procedures and systems are sufficiently mature to support the arrangement going forward. I trust that the small number will support the Government of Nauru in achieving this outcome, by alleviating the demands on the Government of Nauru’s resources and ensuring safe and effective management of the cohort.

Secretary Eoe’s letter of 13 November 2024 also indicated that the Government of Nauru is amenable to accepting individuals without any reservation in relation to age, past offences, or other characteristics. The Australian Government will provide details to the Government of Nauru on the individuals proposed for reception and settlement - as the legislation now allows - including their backgrounds, details of any prior criminal offending, and other relevant information to allow Nauru to determine if the individuals are suitable for settlement.

To allow the initial cohort to commence, I seek your agreement to the interim third country reception arrangement as set out in Attachment A below. Under Australian law, having such an arrangement in place is essential to establish a robust legal framework and to allow advance payments of financial support to be made to the Government of Nauru.

(Emphasis added.)

43     Attachment A to the letter was in the following terms:

Attachment A: Interim Third Country Reception Arrangement

The arrangements set out below constitute a ‘third country reception arrangement’ between the Commonwealth of Australia as represented by the Department of Home Affairs (Department) and the Republic of Nauru (GoN), as contemplated by section 198AHB of the Migration Act 1958 (Australia).

These terms in this arrangement will remain in force until replaced by a new third country reception arrangement, or ceased by mutual consent, as agreed to in writing by both countries.

1. The settlement arrangement for any individual person shall commence from the individual acceptance date, being the date on which, following receipt by the GoN of a request to settle a named person from the Department, the GoN provides formal written notice to the Department of its willingness to settle this person in Nauru under this arrangement.

2. The formal notice shall be specific to the person and not general in nature, in order to provide sufficient certainty to the Department to undertake the logistical actions in Australia necessary to remove the person to Nauru for settlement.

3. The Department shall provide all reasonably requested information, as permitted by Australian law, to the GoN in relation to any individual proposed to be settled to allow for this notice to be issued and appropriate preparations to be made prior to arrival.

4. The GoN shall grant each person accepted for settlement while this arrangement is in force an indefinite stay visa to enter and remain in Nauru.

5. The terms of the issued visa shall allow settled people to leave and re-enter Nauru, subject to any reasonable conditions and regulations the GoN believes necessary for the good order of Nauru.

6. The GoN shall conduct its operations in accordance with the previously discussed conditions for treatment of all settled people, namely:

a) Treatment in accordance with international legal obligations, including relevant obligations under international human rights laws

b) Freedom of movement, with no separation from the Nauruan community solely as a result of an individual's status

c) No imposition of detention, except in accordance with ordinary Nauruan law

d) A right for individuals to raise new protection claims and have those claims assessed

e) No risk of arbitrary deprivation of life, application of the death penalty, torture or other cruel, inhuman or degrading treatment or punishment or persecution

f) No risk of chain refoulement

g) No imposition of arbitrary or punitive conditions in support of community safety

h) Access to work rights, and any relevant social safety nets and services

7. The GoN accepts its responsibility to provide support to settled persons to achieve minimum outcomes in line with Nauruan standards of living including, as necessary and as tailored to individual needs:

a) Provision of appropriate and gender-sensitive accommodation, including fixtures and furnishings, suitable for males and females and supporting the co-habitation of nuclear family groups where settled

b) Provision of reasonable allowances for living expenses

c) Access to local transport services

d) Access to health services, including telemedicine and telehealth

e) Access to welfare and education services

f) Making any other administrative or logistical arrangements required to ensure the safety and wellbeing of settled people and the Nauruan community

i Until negotiations for a comprehensive funding agreement are finalised, a process for interim payments to support Nauru will be established by way of exchange of letters.

8. The Department and GoN will meet regularly to discuss GoN progress in the operationalisation of the various mechanisms, procedures, and systems developed for delivery of the settlement program while this arrangement is in force.

9. In the event that a nominated person does not arrive in Nauru, departs from Nauru after arrival, or is deceased, the Department may terminate the provision of funding in relation to that individual with 30 days’ notice. Specifically but not exhaustively, this clause comes into force:

a) In the event of an injunction or other compelled action by a court in relation to a named individual which prevents their arrival in Nauru or requires their departure from Nauru

b) If an individual voluntarily and permanently departs from Nauru due to their securing of permission to enter and remain in another country

c) If the Department and the GoN otherwise mutually agree that a person has departed from Nauru with or without authority, and there is no reasonable prospect of their return

10. Payment for a settled person shall cease immediately if an action by the GoN led to an individual being removed or otherwise no longer being present on Nauru.

(Bold emphasis added.)

I note that Attachment A includes a reference (at para 6(f)) to there being no risk of “chain refoulement”. I understand that expression to be interchangeable with “indirect refoulement” and to refer broadly to a situation where a non-citizen is indirectly returned (i.e. via another country or countries) to a country where they face a real risk of persecution or harm.

44     On 4 February 2025, Ms Strugnell sent an email to Secretary Eoe and Secretary Udit, with “client briefs” in relation to the three individuals that Australia proposed that Nauru would receive under the proposed interim arrangement. One of these was the applicant. The background information about the applicant was set out on one page and included:

[REDACTED]

45     On 6 February 2025, Secretary Udit provided Ms Strugnell with a [REDACTED]. Ms Strugnell accepted during cross-examination that [REDACTED].

46     On 7 February 2025, the President of Nauru sent a letter to the Minister for Home Affairs (Australia). The letter included:

Following our discussion, I confirm receipt of your letter dated 31 January 2025. The government of Nauru affirms its commitment to undertaking the Third Country Reception arrangements. Nauru welcomes this initiative and recognises its importance for both our countries. I have instructed our senior officials to engage in discussions and finalise the agreement, ensuring that all necessary terms and conditions are addressed with a view to the earliest implementation.

47     By letter dated 10 February 2025, the President of Nauru wrote to the Minister for Home Affairs (Australia) stating:

Further to my letter of 7 February 2025, I write to confirm that the Government of Nauru agrees to the interim third-country reception arrangement set out in Attachment A of your letter dated 31 January 2025. Further, each of the initial 3 persons, and thereafter any such other persons accepted for settlement while the arrangement is in force, will receive a long-term stay visa to enter and remain on Nauru for a period of 30 years.

(Emphasis added.)

48     Ms Strugnell accepted during cross-examination that, [REDACTED].

49     On 12 February 2025, the Minister for Home Affairs (Australia) sent a letter to the President of Nauru that stated:

Thank you for confirming that the Government of Nauru agrees to the interim third country reception arrangement set out in Attachment A of my letter dated 31 January 2025, and for advising that each of the initial 3 persons will receive a long term stay visa to enter and remain on Nauru for a period of 30 years.

On that basis, my letter of 31 January 2025, your reply letter of 10 February 2025 and this letter together shall constitute an agreement between the Commonwealth of Australia and the Government of Nauru, which will enter into force upon your receipt of this letter.

This agreement is a statement of the shared understanding of the participants and is not intended to create any legally binding rights or obligations.

(Emphasis added.)

50     As noted above, the respondents’ case is that the exchange of letters between the Minister for Home Affairs (Australia) and the President of Nauru constituted an agreement or arrangement between Australia and Nauru, albeit an interim agreement or arrangement that applied to only three individuals (one of whom was the applicant). One aspect of the applicant’s case (proposed new ground 2A) appears to put in issue whether an agreement or arrangement was in fact formed. Subject to consideration of that ground (including whether it can be raised), I find that the exchange of letters between the Minister for Home Affairs (Australia) and the President of Nauru constituted an agreement or arrangement, albeit an interim one. It is common ground that the Interim Agreement related to only three persons, one of whom was the applicant.

51    Ms Strugnell accepted during cross-examination that, [REDACTED]. This remained the case as at 16 February 2025, when the applicant was detained.

21    As can be seen, Moshinsky J found that the Department had been negotiating a third country reception arrangement with the Republic of Nauru since September 2024. Ultimately, the Minister reached an interim arrangement in relation to three individuals on 10 or 12 February 2025. At present, there is no evidence that, prior to the decision of the Tribunal, the Department had formulated or proposed that the interim arrangement (or any other arrangement) would apply to the applicant in this case.

22    By his discovery application, the applicant seeks documents that he contends are relevant to ground 3 of his application for judicial review. Relevantly, the applicant contends that the Minister was aware of the existing or impending arrangement with the Republic of Nauru to accept the removal of persons in the applicant’s position before the time of the Tribunal’s decision, but the Minister’s submissions to the Tribunal gave the impression that there was no existing or impending arrangement with any third country to accept the removal of persons from Australia who could not be removed to their country of origin.

Applicable principles

23    There was no dispute between the parties as to the applicable principles governing discovery, which can be stated briefly.

24    Division 20.2 of the Federal Court Rules 2011 (Cth) (Rules) sets out the procedure for seeking discovery. Rule 20.11 of the Rules stipulates that a party must not apply for an order for discovery unless the making of the order will “facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible”. That rule reflects the overarching purpose of civil practice and procedure which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth) (FC Act).

25    The two touchstones for discovery are the tests of relevance and proportionality, as framed by r 20.11 and the overarching purpose stated in s 37M. Relevance as defined in s 55 of the Evidence Act 1995 (Cth) requires that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.

26    The Court’s Administrative and Constitutional Law and Human Rights Practice Note provides the following guidance on discovery in administrative law cases:

8.1     Unless a party provides an acceptable justification, no discovery or interrogatories will be ordered in proceedings for administrative law cases and constitutional law cases. 

27    This is because the issues for determination in judicial review proceedings are usually determined on the basis of the materials that were before the person or body whose decision is being appealed or reviewed (in this case, the Tribunal).

28    This is not to say that discovery may never be awarded in an administrative law context. Discovery may be ordered where there is a foundation in evidence or in the pleadings to support such an application: McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 812 at [7] (Colvin J). The power to order discovery depends on the nature of the case and the stage of the proceedings at which discovery is sought. It will be relevant whether the proceedings are speculative in nature and whether there is any material to support the allegations made: Carmody v MacKellar (1996) 68 FCR 265 at 280; Jilani v Wilhelm (2005) 148 FCR 255 at [108].

Consideration

29    By ground 3, the applicant alleges that the Minister breached his obligation under s 56(1) of the ART Act to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review, and thereby deprived the Tribunal of the ability to consider matters it was required to consider, by failing to inform the Tribunal of the impending third country reception arrangement with the Republic of Nauru. The ground raises the following questions:

(a)    what information was available to the Minister concerning the impending third country reception arrangement with the Republic of Nauru at the time of the Tribunal hearing;

(b)    whether the Minister had an obligation to disclose that information to the Tribunal and failed to do so; and

(c)    whether any failure to disclose the information vitiated the Tribunal’s decision.

30    The applicant has a proper basis to seek discovery in respect of question (a). Both the announcement of the Australian Government made on 16 February 2025, and the subsequent decision of the Court in TCXM, indicate that the Government had been in negotiations with the Republic of Nauru in respect of third country reception arrangements for a considerable period of time prior to the Tribunal hearing. Information about the negotiations, and the likelihood that the arrangements would be extended to the applicant, as at the date of the Tribunal hearing (and up to the date of the Tribunal decision), is relevant to ground 3.

31    The Minister opposed discovery principally on the basis that the Australian Government did not enter into an arrangement with the Republic of Nauru until after the Tribunal made its decision in the present case, and the arrangement entered into was an interim arrangement that concerned three individuals and not the applicant. The Minister argued that records of the negotiations, including draft arrangements, could not be relevant to the Tribunal’s decision. I do not accept that submission. On this discovery application, the relevant question is whether such documents are relevant to the issues raised by the applicant’s ground of review. The ultimate assessment of the issues, including whether the discovered documents may have had a bearing upon the Tribunal’s decision, is a matter for trial.

32    The Minister further submitted that the scope of discovery sought by the applicant is not proportionate to the ground of review. A search for file notes or correspondence over a five-month period (from 1 September 2024 to 16 February 2025) would take significant time and effort. The Minister noted that the Department would need to take advice on public interest immunity and legal professional privilege. The Minister further submitted that it is uncontroversial that, while the Tribunal proceeding was on foot, there were ongoing communications between the Commonwealth and the Republic of Nauru about the removal of persons affected by NZYQ to Nauru and the establishment of a third country reception arrangement. The Minister offered to agree to facts to that effect. In written submissions, the Minister also offered to provide the applicant with a copy of the documents comprising the interim arrangement with the Republic of Nauru. At the hearing of the application, the Minister informed the Court that those documents had been provided to the applicant.

33    I accept the Minister’s submission that the categories of discovery originally sought by the applicant were excessively broad. Although the categories were limited as to time, the categories had the potential to apply to a wide range of documents within the Department. At the hearing, both parties suggested modifications to the discovery application to narrow the categories or otherwise reduce the burden associated with discovery.

34    As set out earlier in these reasons, extensive factual findings were made in TCXM concerning the course of negotiations between the Commonwealth and the Government of the Republic of Nauru with respect to entering into a third country reception arrangement under s 198AHB. In light of those factual findings, the Minister has proposed the following procedural steps and orders to resolve the discovery application.

35    First, the Minister is willing to admit as facts in this proceeding the findings of fact made in TCXM. The Minister is also willing to admits as facts in this proceeding the following additional matters:

(a)    at the time of the applicant’s proceeding before the Tribunal:

(i)    discussions at a very high level of Executive Government were occurring between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru;

(ii)    those discussions included discussions about the potential removal from Australia to Nauru of persons affected by the decision of the High Court of Australia in NZYQ (the NZYQ cohort);

(iii)    the applicant was part of the NZYQ cohort; and

(iv)    the applicant himself was not the subject of any specific mention in those discussions between representatives of the Commonwealth of Australia and representatives of the Republic of Nauru; and

(b)    the applicant continues to be part of the NZYQ cohort.

36    Second, and as noted above, the Minister has also provided to the applicant the documents that comprise the interim arrangement with the Republic of Nauru.

37    Third, the Minister has agreed to provide discovery in two categories, being:

(a)    documents comprising any third country reception arrangement or arrangements between the Commonwealth of Australia and the Republic of Nauru; and

(b)    documents provided by the Commonwealth of Australia to the Republic of Nauru during the period from 1 September 2024 to 6 February 2025 (inclusive) referring specifically to the applicant.

38    I consider that the Minister’s proposed procedural steps and orders largely address the applicant’s reasonable entitlement to discovery in respect of ground 3 of the application for review. However, I consider that two amendments should be made to the Minister’s proposed orders.

39    First, the Minister should provide discovery not only of the third country reception arrangement entered into between the Commonwealth of Australia and the Republic of Nauru (which the Minister has already discovered), but should also provide discovery of communications passing between the Commonwealth of Australia and the Republic of Nauru in the period 1 September 2024 to 30 January 2025 containing a draft or proposed third country reception arrangement. In my view, draft or proposed arrangements are relevant to ground 3 of the application for review. It is apparent that, by ground 3, the applicant will contend that the Minister was legally required to disclose any such draft or proposed arrangements to the Tribunal to enable the Tribunal to take them into account in its decision. The contention renders the documents relevant. The relevant period ends at 30 January 2025 because the Minister has given discovery of the documents which comprise the arrangement made between Australia and Nauru which commence with a document dated 31 January 2025. In that regard, I reject the applicant’s proposed orders which seek copies of all communications between the representatives of Australia and Nauru in the period 1 September 2024 and 6 February 2025 (being the documents described in TCXM at [40] and [41]). In my view, expanding the category in that manner will result in the production of documents of limited and diminishing probative value and will unreasonably increase the cost of discovery.

40    Second, the Minister should provide discovery not only of documents provided by the Commonwealth of Australia to the Republic of Nauru referring specifically to the applicant, but of documents, created in the period 1 September 2024 to 5 February 2025, which refer specifically to the applicant and which concern the removal of the applicant from Australia to any country pursuant to a third country reception arrangement. While ground 3 of the application for review is largely focused on removal to Nauru (by reason of the public announcement of the interim arrangement entered into with the Republic of Nauru), it is not confined exclusively to Nauru. Neither the applicant’s alleged submissions to the Tribunal concerning the prospect of removal from Australia, nor the Minister’s response to the Tribunal, were confined to the possibility of removal to Nauru. In those circumstances, documents which refer specifically to the applicant and which concern the removal of the applicant from Australia are relevant to the ground of review. It is appropriate to confine the category with the same temporal limitation (1 September 2024 to 5 February 2025) to ensure that the cost of discovery is reasonable and proportionate.

41    Conversely, I reject the applicant’s proposed orders which seek documents referring to, proposing or discussing any criteria for the selection of non-citizens for removal to Nauru or any other country and/or consideration of the number of non-citizens who may be removed to Nauru or any other country. In my view, such documents have little, if any, relevance to ground 3 of the application for review and the time and cost of requiring the Minister to search for such documents is disproportionate to any conceivable relevance.

Conclusion

42    In conclusion, orders will be made:

(a)    noting the admissions of fact that the Minister has agreed to make for the purposes of the proceeding; and

(b)    for discovery to be given of the categories of documents referred to above.

43    Each of the parties has proposed that the costs of the discovery application be reserved. As each party has had a measure of success on the discovery application, my present view is that the costs of the discovery application should be costs in the cause. Nevertheless, given the parties’ agreement, I will make an order that the costs be reserved. If no further order is made, the costs will be costs in the cause in any event.

44    The parties proposed different timetables to prepare the matter for hearing, with the applicant seeking an earlier hearing. I have timetabled the matter for hearing at the earliest date I have available.

Associate:

Dated:    21 August 2025