Federal Court of Australia

Kozak v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 965

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application filed 13 July 2026 (interlocutory application) is dismissed.

2.    The respondent's application for costs of the interlocutory application is adjourned to the hearing of the application for relief under s 39B of the Judiciary Act 1903 (Cth).

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    On 10 January 2023 a delegate of the Minister for Home Affairs refused to grant to the applicant, James Andrew Kozak, a Visitor (Class FA) Visitor (Tourist) (Subclass 600) visa under s 65 of the Migration Act 1958 (Cth) (Act). After receiving notification of that decision Mr Kozak lodged a review application with the Administrative Appeals Tribunal (AAT). However, Mr Kozak did not lodge that application until 6 September 2023. According to the AAT, Mr Kozak was required by s 347(1)(b) of the Act and by reg 4.10 of the Migration Regulations 1994 (Cth) to lodge that application within 21 days after he was notified of the delegate's decision. The AAT found that Mr Kozak was notified of the delegate's decision on 10 January 2023. Accordingly, on 22 November 2023 the AAT concluded that Mr Kozak's application for review was not made in accordance with the relevant legislative provisions and, on that basis, that it did not have jurisdiction to review the delegate's decision.

2    Based on the materials in the Court Book prepared by the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), Mr Kozak then requested that the Minister intervene under s 417 of the Act. At the relevant time, s 417(1) provided that if the Minister thought that it was in the public interest to do so, he or she could substitute for a decision of the AAT that was made on review of a 'Part 7-reviewable decision' under s 415, another decision, being a decision that was more favourable to an applicant, whether or not the AAT had the power to make that other decision. A similar power was also available to the Minister under s 351 of the Act in relation to a 'Part 5-reviewable decision' that was made by the AAT under s 349 of the Act.

3    On 26 February 2024 a delegate of the Minister (Delegate) informed Mr Kozak that, as the AAT had not made a decision under either ss 349 or 415 of the Act, the Minister did not have the power to substitute a decision of the AAT with a more favourable decision under ss 351 or 417, respectively.

4    In an amended originating application, Mr Kozak seeks relief under s 39B of the Judiciary Act 1903 (Cth) in relation to the Delegate's decision made on 26 February 2024. Mr Kozak contends that on the proper construction of ss 349 and 351 of the Act the Delegate fell into jurisdictional error in making that decision and seeks orders that the decision be quashed and that the Minister be directed to determine his request to substitute the decision made by the AAT with a more favourable decision.

5    On 9 July 2026, Mr Kozak lodged an interlocutory application, supported by an affidavit affirmed by him on the same date. That application was accepted for filing on 13 July 2026. By that application Mr Kozak seeks the following orders:

1.     The Applicant requests the following documents be disclosed to him by Respondent.

A) The interview notes, contemporaneous notes, transcripts, audio/visual recordings, record of interview document and any other paper, electronic or otherwise, records generated from the 22 May 2024 compulsory interview of the Applicant at the Perth Status Resolution Office, from Maria (PN 00012139), Dayan (PN 60174754), Alison (PN60047551), and Brooke PN (60021744).

B) The interview notes, contemporaneous notes, transcripts, audio/visual recordings, record of interview document and any other paper, electronic or otherwise, records generated from the 10 September 2025 compulsory interview of the Applicant at the Perth Status Resolution Office, from Maria (PN 00012139).

6    In his affidavit in support Mr Kozak says, in effect, that he understood from what had been said by counsel for the Minister when he last appeared before the Court at a case management hearing on 29 May 2026 that the documents referred to in those orders would be disclosed to him. Mr Kozak then says that after writing to counsel for the Minister on 6 July 2026 with a list of the documents he sought to be disclosed, he was advised that those documents would not be disclosed to him.

7    Mr Kozak's interlocutory application was accepted for filing on 13 July 2026. Given that the hearing of Mr Kozak's originating application is listed on 24 July 2026, arrangements were made to list the matter before me on 20 July 2026. After I heard submissions from both Mr Kozak and from counsel for the Minister, the hearing of the interlocutory application was adjourned to today, 21 July 2026, to give Mr Kozak further time to properly formulate his submissions.

8    Having heard further from Mr Kozak, and from counsel for the Minister, I was of the view that the interlocutory application must be dismissed and made orders to that effect. These are my reasons for making those orders.

9    Mr Kozak was unable to identify the Court's power to make the orders sought in his interlocutory application. In the circumstances, I have approached the application on the basis that Mr Kozak seeks an order for particular discovery under r 20.21 of the Federal Court Rules 2011 (Cth) (Rules), and a further order for production under r 20.32 of the Rules.

10    The principles that govern discovery in the context of applications for judicial review were recently summarised by O'Bryan J in GNHW v Minister for Immigration and Multicultural Affairs [2025] FCA 990 at [24] to [28]:

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).

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.

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.'

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).

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].

11    I gratefully adopt that summary.

12    The documents sought by Mr Kozak relate to two compulsory interviews he says were conducted with him by employees of the Department of Home Affairs (Department) on 22 May 2024 and 10 September 2025, respectively. Those interviews are said to have taken place after the Delegate made the decision that is the subject of Mr Kozak's application for relief under s 39B of the Judiciary Act. As I have already noted that decision was made on 26 February 2024.

13    In support of his interlocutory application, Mr Kozak sought to rely on an email sent to my chambers at 7.16 am AWST this morning. In that email Mr Kozak set out what he said was a 'witness account letter' authored by his partner, June Winsome-Smith. In that account, Ms Winsome-Smith referred to what she said occurred when she attended at the interviews conducted by the Department with Mr Kozak on 22 May 2024. Counsel for the Minister did not object to me receiving Ms Winsome-Smith's 'witness account letter' as evidence in Mr Kozak's interlocutory application.

14    In her account Ms Winsome-Smith said that, while Mr Kozak was being interviewed by the Department, she was approached by two people who asked her to accompany them out of the waiting area where she was sitting and into a corner of the reception. According to Ms Winsome-Smith, she was then asked a series of questions about her welfare were Mr Kozak to be required to leave Australia. Ms Winsome-Smith says that the encounter with these two people left her 'shaking and upset', she felt intimidated and she did not know whether Mr Kozak would then be immediately deported.

15    Mr Kozak also gave oral evidence before me at the hearing this morning. In his evidence, Mr Kozak gave an account of what he said occurred when he attended at the interviews conducted by the Department on 22 May 2024 and 10 September 2025. It is unnecessary to summarise Mr Kozak's evidence in any detail. It appears the interviews were conducted in connection with the renewal of bridging visas granted to Mr Kozak. Mr Kozak's evidence was to the effect that, from his perspective, the purpose of those interviews was to interfere with and frustrate his application for relief under s 39B of the Judiciary Act. He also gave evidence that supported Ms Winsome-Smith's version of events when the two of them met up after the interview, which took place on 22 May 2024, had concluded.

16    As he later submitted, Mr Kozak is of the view that the actions taken by the Department during his interviews were 'retaliatory in nature', were held for an improper purpose to remove him from the 'onshore migration zone' and were intended to 'circumvent … the Court's jurisdiction to decide this matter according to law'. When asked about the relevance of the documents that he sought to be discovered and produced, Mr Kozak submitted that they would demonstrate that the Minister had engaged in a 'continuing pattern of unlawful conduct' and 'continually acts outside of their statutory authority'.

17    As was explained in GNHW, discovery is not usually ordered in proceedings such as these. That is at least in part because 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'. Where, as is usually the case, the issues for determination fall to be resolved based on the materials that were before the decision maker whose decision is challenged the just resolution of those issues will usually not be facilitated by discovery.

18    In my view, the documents sought by Mr Kozak, which relate to events that have no relevant connection to the Delegate's decision, will not facilitate the just resolution of these proceedings. Specifically, there is no foundation in the evidence before me or in the documents that appear on the Court file to suggest that the documents sought by Mr Kozak may support his application for relief under s 39B of the Judiciary Act.

19    The issue to be determined in these proceedings is whether the Delegate fell into jurisdictional error in deciding on 26 February 2024 that the Minister did not have the power to substitute the AAT's decision dated 22 November 2023 with a more favourable decision, pursuant to ss 351 or 417 of the Act, respectively. As Mr Kozak's amended originating application itself recognises, that turns on the proper construction of provisions of the Act that were in force at the relevant time. The question raised by the amended originating application is whether, on the proper construction of those provisions and contrary to the Delegate's decision, the Minister had the power under ss 351 or 417 of the Act to substitute a more favourable decision for the decision made by the AAT. That question does not fall to be determined by having regard to circumstances that did not exist at the time of that decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [28]. Even if the documents could, as Mr Kozak submitted, demonstrate that the Minister engaged in a pattern of unlawful conduct and that the Department officers who interviewed him on 22 May 2024 and 10 September 2025 had the improper purpose Mr Kozak contends they had, the documents sought to be discovered and produced for inspection could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding or otherwise bear upon the issues this Court is required to determine.

20    For these reasons I made an order that the interlocutory application filed on 13 July 2026 be dismissed.

21    In circumstances in which Mr Kozak indicated that he could not make submissions about whether he should pay the Minister's costs of the interlocutory application I adjourned the Minister's application for costs to the hearing of the application for relief under s 39B of the Judiciary Act.

Associate:

Dated:    21 July 2026