CKY19 v Minister for Immigration

[2020] FCCA 1195

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKY19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1195

Catchwords:
PRACTICE AND PROCEDURE – Application in a case to set aside subpoena to produce – whether items in the subpoena were relevant to the grounds of the amended application – no relevance made out – paragraphs 2(a) to (f) of the subpoena to produce set aside.

Legislation:

Migration Act 1958 (Cth), ss. 473CB, 476

Federal Circuit Court Rules 2001 (Cth) r. 15A

Applicant: CKY19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1513 of 2019

Judgment of: Judge Street

Hearing date: 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Sydney

Delivered on: 15 May 2020

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Sydney West Legal and Migration

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Paragraphs 2(a) to (f) of the subpoena to produce dated 9 April 2020 are set aside pursuant to r 15A.09 of the Federal Circuit Court Rules 2001 (Cth).

2. The matter is fixed for a final hearing at 9:30am on 1 July 2020 by video link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

3. Any affidavit evidence by the first respondent be filed and served on or before 22 May 2020.

4. Leave is granted to the applicant to file and serve any affidavit evidence in reply on the same date as the filing of submissions in accordance with order 8 made on 10 July 2019.

5. The second and third sentence of paragraph 14 of the first respondent’s submissions dated 14 May 2020 are to be treated as agreed facts pursuant to s 191 of the Evidence Act 1995 (Cth) and the Court dispenses with the needs for the filing of a signed document in that regard.

6. Costs of the interlocutory application are reserved.

DATE OF ORDER: 15 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1513 of 2019

CKY19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These substantive proceedings are ones seeking a Constitutional writ in respect of a decision of the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth) (“the Act”) made on 7 June 2019. 

2. An application in a case has been filed on 1 May 2020 seeking to set aside paras 2(a) to (f) of a subpoena, which provide as follows:

   2.

   a. Any instrument of delegation of the Secretary’s powers under s 473CB(1)(c) Migration Act to the person who exercised those powers in respect of the referral to the Immigration Assessment Authority (the Authority) of the fast track reviewable decision concerning the applicant.

   b.   Departmental instructions, directions, guidelines, protocols, procedures, checklists or the like for the regulation of the original compilation of ‘fast track review files' for the purpose of the administration by delegates of visa applications made by ‘fast track applicants’ and the making of ‘fast track reviewable decisions’, which applied to the original creation of file BCC2016/1887588.

   c.   Contents of file BCC2016/1887588 not being material already reproduced in the Court Book, and any other material which is not otherwise listed at Annexure A of the delegate’s decision, which was before the delegate at the time of the delegate’s decision on 3 May 2019. This category does not include incidental material of an administrative nature such as internal emails deemed not relevant for inclusion in the Court Book.

   d. Contents of file BCC2016/1887588 not being material already reproduced in the Court Book, and any other material not otherwise listed at Annexure A of the delegate’s decision, which was considered by the Secretary in the exercise of the power under s 473CB(1)(c) of the Migration Act in compiling the PDF portfolio of ‘review material’ at the time of referral of the fast track reviewable decision concerning the applicant. This category does not include incidental material of an administrative nature such as internal emails deemed not relevant for inclusion in the Court Book.

   e. Contents of the PDF portfolio of 'review material' compiled and given by the Secretary to the Authority pursuant to s 473CB of the Act, in relation to the fast track reviewable decision concerning the applicant, including the contents of file BCC2016/1887588 which are not already reproduced in the Court Book, and any other material not otherwise listed at Annexure A of the delegate’s decision. This category does not include incidental material of an administrative nature such as internal emails deemed not relevant for inclusion in the Court Book.

   f. Records, including correspondence and the 'Referrals to the Immigration Assessment Authority and Disclosure Checklist', relating to the constitution and provision of the PDF portfolio of 'review material' by the Secretary to the Authority pursuant to s 473CB of the Act.

3. The ground referable to the alleged breach of s 473CB of the Act in the amended application is as follows: 

   2. The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the third respondent Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.

   Particulars

   a. The Secretary did not, at the time the delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control.

   b. These documents included the applicant’s Application for Refugee Status Determination (RSD) on Manus Island, Papua New Guinea and documentation submitted in support of this application including submissions to the RSD officer, the sound recording of the applicant’s RSD interview, and the RSD decision on the application.

   c. These documents were not before the delegate and were not part of the domain of documents considered by the Secretary at the time of referral of the delegate’s decision.

4. Section 473CB of the Act provides as follows: 

   Material to be provided to Immigration Assessment Authority

   (1)The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)a statement that:

   (i)sets out the findings of fact made by the person who made the decision; and

   (ii)refers to the evidence on which those findings were based; and

   (iii)gives the reasons for the decision;

   (b)material provided by the referred applicant to the person making the decision before the decision was made;

   (c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

   (d)the following details:

   (i)the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

   (ii)the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iii)the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iv)if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

   (v)if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

1. The application in the case seeks to set aside the subpoena under r 15A of the Federal Circuit Court Rules 2001 (Cth).

2. Mr Gormly, counsel on behalf of the applicant, contends that it is relevant to seek for there to be produced the documents the subject of paras 2(a) to (f) so that he can ascertain what searches and when a decision was made by the Secretary in relation to the provision of documents under s 473CB of the Act. 

3. None of those are matters that are relevant to the ground that is articulated. The applicant already has a document in respect of which it is apparent the applicant can advance an argument of alleged materiality in respect of that document, which may or may not give rise to a breach, which may or may not give rise to a jurisdictional error. 

4. None of the information in paras 2(a) to (f) are more than a fishing expedition. They are not, on their face, relevant to the ground identified in the application.

I certify that the preceding eight (8) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 6 August 2020