Avx16 v Minister for Immigration - [2020] FCCA 945

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVX16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 945

Catchwords:
PRACTICE AND PROCEDURE – Application for Discovery – whether documents sought are immune from production – whether discovery should be granted – documents found to be immune from discovery – discovery in any event not appropriate – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.19D, 60
Federal Circuit Court of Australia Act 1999 (Cth), s.45
Federal Circuit Court Rules 2001 (Cth), r.14.06
Migration Act 1958 (Cth), ss.414, 424A, 425

Cases cited:

Abrahams v Qantas Airways Limited (No 2) (2007) 210 FLR 314
East Melbourne Group Inc v Minister for Planning [2008] VSCA 217

Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21

Herijanto v Refugee Review Tribunal [2000] HCA 16

Mathews v Health Insurance Commission (No 1) [2005] FCA 1061
MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133
O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315

Applicant:

AVX16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 755 of 2016

Judgment of:

Judge C. E. Kirton QC

Hearing date:

12 February 2019

Date of Last Submission:

12 February 2019

Delivered at:

Melbourne

Delivered on:

29 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr McBeth

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the First Respondent:

Mr Chaile

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application in a case dated 1 February 2019 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $2,000.
The matter be listed for final hearing in the Federal Circuit Court of Australia on a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 755 of 2016

AVX16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an Application in a case filed on 1 February 2019, the Applicant seeks discovery (Discovery Application). Specifically, the Applicant seeks:
1.Each of the Respondents make particular discovery of the notes made by Tribunal Member Wendy Boddison that were before Tribunal Member Sophia Panagliotidis in the applicant’s matter before the Tribunal, as referred to in the transcript of the hearing on 10 September 2015 before Tribunal Member Sophia Panagliotidis, page 2, line 19, annexed as annexure CJF-2 to the affidavit of Catherine Jane Farrell filed on 9 November 2018 in this proceeding (‘the Notes’).
2.Each of the Respondents file an affidavit as to:
a.the matters specified in r.14.06(a) of the Federal Circuit Court Rules (Rules) in relation to the Notes; and
b.the searches and enquiries conducted by the deponent to locate the Notes.
The First Respondent (Minister) opposes the Discovery Application.
These reasons will determine whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 945
Decision Date: 29 April 2020

CaseChat Overview and Summary

The applicant, Avx16, sought discovery of certain documents from the Minister for Immigration. The core of the dispute concerned whether these documents were immune from production and, if not, whether discovery was otherwise appropriate in the circumstances. The application was heard by Judge C. E. Kirton QC.

The primary legal issues before the Court were whether the documents sought by the applicant were protected by a claim of immunity from discovery, and alternatively, whether the Court should exercise its discretion to grant discovery even if immunity was not established.

His Honour found that the documents in question were indeed immune from discovery. In reaching this conclusion, the Court applied established principles regarding the scope of discovery and the grounds upon which documents may be withheld from production. Having determined that the documents were immune, the Court further considered whether discovery would be appropriate in any event, and concluded that it would not. Consequently, the application for discovery was dismissed.

Orders