Federal Court of Australia

Da Silva v Minister for Immigration and Citizenship (Notice to Produce) [2026] FCA 838

ORDERS

THE COURT ORDERS THAT:

1.    Order 5 of the orders made on 10 September 2025 by a Registrar (about the determination by a Registrar of a proposed interlocutory application in relation to issues of compliance with the applicant’s notice to produce dated 17 July 2025) be vacated.

2.    Paragraph 3 of the applicant’s notice to produce dated 17 July 2025 be read as requiring production of: “All documents relating to or referring to the applicant that were before the person or persons who drafted the Submission (excluding any document that already appears in the CB or produced in response to point 2 above), including the document by which the person(s) were requested to draft the Submission”.

3.    By 3 July 2026, the respondent provide his response to paragraph 3 of the notice to produce as amended by order 2 and release to the applicant any responsive documents to which access by the applicant is not disputed.

4.    The respondent’s interlocutory application dated 15 August 2025 otherwise be dismissed.

5.    The applicant’s interlocutory application dated 17 September 2025 be dismissed.

6.    By 10 July 2026, the applicant file and serve any further amended originating application, and any further evidence.

7.    By 24 July 2026, the respondent file and serve any evidence in reply and a supplementary court book.

8.    By 7 August 2026, the applicant file and serve written submissions limited to 10 pages.

9.    By 21 August 2026, the respondent file and serve written submissions limited to 10 pages.

10.    By 26 August 2026, the applicant file and serve written submissions in reply limited to 3 pages.

11.    By 28 August 2026, the parties file a joint list of authorities with pinpoint references.

12.    The matter be listed for final hearing, with an estimate of 1 day, on a date to be advised.

13.    There be liberty to apply on 2 days’ notice.

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

REASONS FOR JUDGMENT

THAWLEY J:

Overview

1    These reasons concern two interlocutory applications relating to a notice to produce dated 17 July 2025 served on the respondent Minister by the applicant, Mr Da Silva. The substantive application brought by Mr Da Silva is for judicial review of the Minister’s exercise of the personal power in s 501BA of the Migration Act 1958 (Cth) to set aside a decision of the Administrative Appeals Tribunal and cancel the applicant’s visa.

2    The first interlocutory application, filed by the Minister and dated 15 August 2025, seeks an order that paragraph 3 of the notice to produce be set aside. Paragraph 3 of the notice to produce was in the following terms:

3.    All documents that were available to the person or persons who drafted the Submission (excluding any document that already appears in the CB or produced in response to point 2 above), including the document by which the person(s) were requested to draft the Submission.

3    The second interlocutory application, filed by Mr Da Silva and dated 17 September 2025, seeks orders that the Minister:

(1)    produce an unredacted copy of the one document identified by him as responsive to paragraphs 2 and 4 of the notice to produce, but subject to a claim for legal privilege; and

(2)    file and serve an affidavit (or affidavits) describing the steps taken by him to search for the documents described by paragraphs 2 and 4 of the notice to produce.

4    The second interlocutory application was ordered to be determined by a Registrar pursuant to orders made by a Registrar on 10 September 2025 at which time it was anticipated that Mr Da Silva would file an interlocutory application concerning the second matter just referred to. The interlocutory application which came to be filed included a challenge to the Minister’s claim for privilege.

5    For the reasons below, the wording of paragraph 3 of the notice to produce should be amended, order 5 of the orders made on 10 September 2025 should be set aside and both interlocutory applications should be dismissed.

First interlocutory application

6    In support of his application to set aside paragraph 3 of the notice to produce, the Minister submitted that the paragraph lacks a legitimate forensic purpose and in particular that (RS [5]):

(a)    it seeks the production of documents which do not have “apparent relevance” to the issues in the case; and

(b)    its purpose is for Mr Da Silva to gain knowledge of facts, matters or circumstances which might enable him to advance a case of which he has no present knowledge – in other words, that it involves “fishing”.

7    Mr Da Silva submitted that the documents would be relevant to the two grounds of judicial review he raises in an amended originating application filed on 5 August 2025: AS [6]. Those two grounds are that:

(1)    the delay of 5 years and 5 months between the Tribunal’s “original decision” and the Minister’s decision to exercise the power under s 501BA was an unreasonable delay such that the Minister no longer had power to make the decision; and

(2)    the Minister’s decision was legally unreasonable based on findings made by the Minister given the material before him at the time of the decision, in the circumstances of the delay.

8    The first ground of review reflects the ground of review recently addressed by the Full Court in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19; 315 FCR 207. XMBQ is the subject of an application for special leave to appeal to the High Court. It involves the argument that the power in s 501BA was extinguished by the effluxion of time. The second ground of review challenges the legality of the exercise of the power rather than asserting its extinguishment.

9    The parties agreed that documents sought by a notice to produce will be sufficiently relevant if they have “apparent relevance” and “could reasonably be expected to throw light on some of the issues in the proceedings”: Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd [2023] FCAFC 185 at [35] and [37].

10    Mr Da Silva submitted that:

(a)     paragraph 3 expressly includes any instructions for the drafting of the submission, the date and substance of which may bear on the reason for the delay: AS [9(a)];

(b)    the response to the paragraph would show whether there was any new material before the persons who drafted the submission, or whether it was the same as the material that was also before the Tribunal in 2019, a matter relevant to questions of reasonableness: AS [9(b)];

(c)    the Minister’s response to paragraph 3 would be relevant to the particulars to Mr Da Silva’s grounds of review, where he contends that the Minister only had certain information available to him at the time of his decision and that certain identified relevant information was not before the Minister: AS [11].

11    The documents called for by paragraph 3 have apparent relevance. The documents that were before a decision maker may be relevant to an assessment of delay and whether a decision was legally unreasonable in this statutory context: see XMBQ at [7].

12    However, paragraph 3 is overly broad in extending beyond documents that were “before” the persons who drafted the submission and includes all documents that were “available” to such persons. This would capture any documents that were generally “available” to the Minister or his department, and that could therefore be made available to the persons who drafted the submission, but which could have no bearing on the contended jurisdictional error on the part of the Minister: RS [10]. Accordingly, paragraph 3 should be read as requiring production of:

3.    All documents relating to or referring to the applicant that were before the person or persons who drafted the Submission (excluding any document that already appears in the CB or produced in response to point 2 above), including the document by which the person(s) were requested to draft the Submission.

Second interlocutory application

Privilege

13    The Minister initially produced one document in response to paragraph 2 of the notice to produce, being an internal draft submission relating to the Minister’s discretion to exercise the power under s 501BA to cancel Mr Da Silva’s visa: Donald [4]. Ms Mia Donald, a partner at Sparke Helmore Lawyers, gave evidence by affidavit that she, with the assistance of another lawyer in her team, prepared the draft submission and, as a part of that, provided legal advice on the contents of the document, including by using the Microsoft Word “comment” function to advise on particular aspects of it: Donald [5]. She believed that the document was prepared for the dominant purpose of providing legal advice in relation to the exercise of the Minister’s power under s 501BA in respect of Mr Da Silva: Donald [6].

14    Mr Da Silva sought to distinguish between the substantive text of the document, being the draft submission itself, and the “comments” made by Sparke Helmore, submitting that only the comments could be privileged: AS [6].

15    I do not accept that submission. Assuming Sparke Helmore’s engagement was to prepare a submission to be put before the Minister, it does not follow that drafts of the submission are not privileged. Ordinarily in these circumstances, the communication of a draft submission with a lawyer’s comments on the draft, would be predominantly for the purpose of seeking instructions and/or conveying advice in relation to the exercise of statutory power – see: State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160; 180 FCR 543 at [23]; Montenegro v Legal Profession Admission Board [2026] NSWCA 101 at [51]. Such communications are obviously privileged. In any event, although some like to dwell on draft documents, a focus on what the decision maker did not decide is rarely relevant and generally tends to result in additional cost and delay at the expense of a focus on what the Minister in fact decided.

16    The parties did not take issue with me, as docket (and ultimately trial) judge, inspecting the document. In the circumstances it was expedient to do so. Consistently with what one would expect given the nature of the document and the circumstances in which it was prepared, that review confirms it is privileged.

17    Mr Da Silva raised a further privilege issue. The Minister identified an additional four documents as being responsive to paragraphs 2 and 4 of the notice to produce, claiming that three of those documents were wholly privileged and one partially privileged: ARS [3]. Those documents consisted of the covering email to the draft submission and internal discussion about the legal advice provided by the draft submission: RS [9]. They are each privileged.

18    I would add that it was not strictly necessary to inspect the documents to resolve the privilege dispute. The Court may inspect privileged documents, but that does not mean that it must. The evidence adduced by the Minister, and the surrounding circumstances, was sufficient to show that the documents were privileged.

19    The challenge to the claim for privilege contained in the second interlocutory application should not have come before a Registrar for determination in the absence of an order from the docket judge. It only occurred by reason of the timing of events described at [4] above. Order 5 of the orders made on 10 September 2025 should be set aside so that all the outstanding issues can be addressed together.

20    I would also observe that challenges to claims for privilege – which appear to be increasing in number – should only be made where there is a real apparent basis for the challenge and the challenge is conducive to the just and efficient determination of the real issues in dispute. Challenges should not be made simply to seek a review of privilege claims which have been made. Such challenges occupy substantial resources, particularly where the issue is referred to someone other than the docket (or trial) judge. The other judge (or Registrar) to whom the issue is referred does not have the familiarity with the matter which the docket judge already has, and such referrals therefore result in duplication of work and can often result in delay.

Compliance

21    In response to the notice to produce, the Minister ultimately produced a total of 25 documents, being:

(a)    initially, one document responsive to paragraph 2, being the draft submission addressed earlier in these reasons: Varess [12] and [13];

(b)    20 documents in response to paragraphs 1 and 5: AS [9]; Varess [10] and [13]; and

(c)    four further documents responsive to paragraphs 2 and 4, being the documents produced on 15 October 2025 as mentioned earlier: ARS [3].

22    Mr Da Silva submitted that the relative paucity of production raised questions about the steps the Minister had taken properly to comply with the notice to produce: AS [10]. In particular, Mr Da Silva questioned (AS [11], [12]):

(a)    why there are no communications disclosed between the Minister or his department, on the one hand, and Sparke Helmore, on the other; and

(b)    how there was only one draft of the submission produced, submitting that it was inconceivable that there are not multiple drafts of the submission.

23    Mr Da Silva also noted that, of the 20 documents produced in response to paragraphs 1 and 5, the only ones dated between the Tribunal’s decision and the Minister’s decision are a Criminal History document and a Movement Details document, both dated 29 May 2024: Varess [11].

24    In his reply submissions, Mr Da Silva submitted that the belated disclosure of the four additional documents was further evidence of the need for an order requiring the Minister to explain his compliance with the notice to produce: ARS [6].

25    It is neither necessary nor appropriate to require the Minister to prepare an affidavit explaining his compliance with the notice to produce. The Minister has said that he has searched his records in good faith: RS [9]. The Court should proceed on the basis that it can take legally represented parties at their word with respect to complying with obligations to produce identified documents sought by a notice to produce, absent good reason to suggest otherwise. There is nothing to warrant taking the unusual step of requiring the Minister or his legal representative to give evidence about the manner of compliance with the notice to produce.

Conclusion

26    Both interlocutory applications should be dismissed. The wording of paragraph 3 of the notice to produce should be amended as indicated at [12] above.

Associate:

Dated:    29 June 2026