BBD15 v Minister For Immigration and Anor (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBD15 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2016] FCCA 3077

Catchwords:
MIGRATION – Application for four subpoenas to produce – whether there are legitimate purposes for the subpoenas to produce – no apparent relevance – no legitimate forensic purpose identified – subpoenas to give evidence are set aside.

Legislation:

Migration Act 1958 (Cth), s.476.

Applicant:

BBD15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 261 of 2015

Judgment of:

Judge Street

Hearing date:

29 November 2016

Date of Last Submission:

29 November 2016

Delivered at:

Sydney

Delivered on:

29 November 2016

REPRESENTATION

The Applicant appeared via teleconference.

Counsel for the Respondents:

Mr P Herzfeld

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The subpoena to give evidence of Karen Woodwiss dated 25 August 2016 is set aside.
The subpoena to give evidence of Arnaud Pasqua dated 25 August 2016 is set aside.
The subpoena to give evidence of Susan Noordink dated 25 August 2016 is set aside.
The subpoena to give evidence of Thomas Marwick dated 25 August 2016 is set aside.
Oral application to adjourn the hearing date refused.
Stand the matter over for further directions at 9:30am on 6 December 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 261 of 2015

BBD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application in a case to set aside subpoenas that have been issued by the applicant in proceedings brought in this Court within its jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of an International Treaty Obligations Assessment (“ITOA”) decision made on 10 June 2015.
The applicant has issued four subpoenas to give evidence, three to officers of SERCO Immigration Services and one to the author of the ITOA report.
The proceedings in matter PEG 261 of 2015 are proceedings in the nature of judicial review and fresh evidence of the merits is not ordinarily received.
The applicant has identified that he wishes to have persons give evidence in relation to issues concerning the merits and a particular finding made in the ITOA report.

Conclusion

This Court is not in a position to receive fresh evidence in relation to the merits of the ITOA decision making process. The subpoenas to give evidence have no apparent relevance.
Nothing said by the applicant identifies any legitimate forensic purpose for the issue of the subpoenas to give evidence. I am satisfied that each subpoena is an abuse of process. In the circumstances, it is appropriate to exercise the power to set aside each of the subpoenas.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 December 2016

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by BBD15 against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation (ASIO). The applicant sought to challenge a decision made by the Minister to refuse to grant a protection visa. The proceedings were heard in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was vitiated by an error of law, specifically concerning the proper application of the adverse information provisions under the *Migration Act 1958* (Cth). The applicant contended that the Minister failed to afford procedural fairness in relation to adverse information that had been considered as part of the visa assessment process.

Judge Street found that the Minister had indeed failed to provide adequate procedural fairness to the applicant. The Court reasoned that the adverse information relied upon by the Minister was significant and potentially determinative of the visa application. Consequently, the applicant ought to have been given a proper opportunity to respond to this information before the adverse decision was made. The Court applied the established principles of procedural fairness, which require that a person affected by a decision be given notice of adverse material and an opportunity to be heard.

The Court ordered that the Minister's decision to refuse the protection visa be set aside. The matter was remitted to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established