DQO16 v Minister for Immigration - [2021] FCCA 870

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQO16 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 870

Catchwords:
MIGRATION – application for general discovery – the Minister’s failure to produce the correct section 46A document – interests of justice – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss. 17A, 45

Federal Circuit Court Rules 2001 (Cth), rr. 13.07, 14.02

Migration Act 1958 (Cth), s. 46A

Cases cited:

Jilani v Wilhelm (2005) 148 FCR 255

Nestle Australia Limited v Commissioner of Taxation (1986) 10 FCR 78

Applicant:

DQO16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2589 of 2016

Judgment of:

Judge Mercuri

Hearing date:

17 April 2020

Date of Last Submission:

17 April 2020

Delivered at:

Melbourne

Delivered on:

30 April 2021

REPRESENTATION

Counsel for the applicant:

Mr Albert

Solicitors for the applicant:

Victoria Legal Aid

Counsel for the respondents:

Mr Hosking

Solicitors for the respondents:

Mills Oakley

ORDERS

The applicant’s oral application for discovery be dismissed.
The matter be listed on 15 June 2021 at 10:00am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2589 of 2016

DQO16

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The substantive application before this court is an application for review of a decision of the Immigration Assessment Authority (“IAA”) made on 3 November 2016. The IAA’s decision affirmed the decision of a delegate of the first respondent (“the Delegate”) made on 5 August 2016 to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (“the visa”). At the time of the IAA decision, the applicant was still a minor having arrived in Australia without a family.
By an amended application filed on 26 February 2020, the applicant raised three grounds of review.
However, for reasons which will become apparent, the primary issue for determination at the hearing before me was the limited question of whether or not an order ought be made compelling the first respondent to make general discovery of relevant documents. This application is opposed by the first respondent.
It is common ground that the applicant initially filed an application for judicial review on 30 November 2016, in which he raised the following two grounds of review:
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
The first respondent filed its response on 14 December 2016 in which it relevantly stated that the ‘grounds pleaded by the applicant cannot succeed in the absence of any particulars to make them meaningful’. Further, the response pleaded that the application failed to establish any jurisdictional error. The first respondent then filed a court book on 19 May 2017.
The matter came before Registrar Allaway on 24 May 2017, who ordered that the matter be listed for a final hearing and that the first respondent file a ‘bundle of relevant documents’ in the form of an electronic court book by 4:00pm on 7 June 2017.
The orders of Registrar Allaway also provided that the applicant could file and serve ‘an amended application with proper particulars of the grounds of the application’ together with a supplementary court book and any written submissions no later than 28 days prior to the final hearing date.
It is not entirely clear why, but on 29 November 2018, the first respondent filed an ‘Amended Court Book’.
On or about 7 March 2019, the first respondent filed an affidavit affirmed by Mr David Baddeley which annexed a copy of an age assessment report completed with respect to the applicant at DB-1. Mr Baddeley stated that the age assessment report was conducted on 29 January 2013 but provided no explanation as to why this document had not been included in the Court Book or the Amended Court Book filed by the first respondent.
On 11 February 2020, the court made orders for the applicant to be provided until 25 February 2020 to file:
a)any amended application with proper particulars of the grounds of the application,
b)a supplementary court book, if any; and
c)written submissions.
There was a notation to those orders which stated:
The matter remains listed for hearing … on 5 March 2020 at 10:00am.
On 26 February 2020, the applicant filed an amended application by which he raised the following grounds of review:
1.The Second Respondent lacked jurisdiction in respect of the Minister’s delegate’s decision concerning the Applicant because he was not a ‘fast track applicant’ and the Authority only has jurisdiction in respect of such people under the Act.
2.The Second Respondent’s exercise of power was contrary to law by reason that:
i.it could not have had a decision on the Applicant’s Safe Haven Enterprise visa application; and/or
ii.it would have lacked power
had the Minister not been derelict in his duty to the Applicant under s 6 of the Immigration (Guardianship of Children ) Act 1946 (Cth).
3.The Second Respondent’s decision was infected by jurisdictional error by reason that the Second Respondent relied on findings adverse to the credibility of the Applicant which findings were legally unreasonable.
Also on 26 February 2020, the applicant filed an affidavit affirmed by Chris Honnery annexing a transcript of the applicant’s interview with a delegate of the first respondent on 14 December 2015 (“SHEV Interview”). Also annexed to Mr Honnery’s affidavit was a letter sent to the applicant by the Department of Immigration and Border Protection dated 22 February 2017.
On or about 26 February 2020, the applicant also filed written submissions. By ground one of the applicant’s amended application, and as expanded upon in the applicant’s written submissions, the applicant raised the issue of whether the applicant was a ‘fast track applicant’ and relevantly, the effect of the first respondent’s decision to lift the bar under section 46A of the Migration Act 1958 (Cth) (“the Act”) to permit the applicant to apply for a SHEV.
On 3 March 2020, the first respondent filed its written submissions.
This matter came before me for hearing on 5 March 2020. At the commencement of that hearing, counsel for the first respondent sought leave to file a document which he submitted was relevant to ground two and was contained in the Supplementary Court Book.
It was put to the court that it was:
the document by which the Minister made the decision to exercise the power under section 46A to allow the applicant to apply for a temporary protection visa, but there may have been a separate decision in relation to a bridging visa. I don’t have a copy of that document…[1]
[1] Transcript dated 5 March 2020 page 3 at lines 15 to 19.
Counsel for the applicant did not object to the Supplementary Court Book being filed, albeit late. Counsel for the applicant then made an oral application for summary judgement under section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) or under rule 13.07 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The first respondent sought and was granted a brief adjournment to 17 April 2020 to confirm whether there were any other documents relevant to the section 46A issue. The applicant made a costs application, and costs were fixed in the sum of $3,018 and reserved.
On 7 April 2020, the first respondent filed an affidavit affirmed by Ms Sophie Caroline Roberts annexing a copy of the second section 46A decision enabling the applicant to make an application for a SHEV at SCR-1.
In that affidavit, Ms Roberts stated:
I am instructed that, apart from the document marked “SCR-1” and the documents already provided to the Court in this proceeding, the Department has not identified any further documents in its possession that are relevant to the grounds of review set out in the amended application filed by the applicant on 26 February 2020.[2]
[2] Affidavit of Ms Sophie Caroline Roberts filed on 7 April 2020 at paragraph 6.
Ms Roberts explained why the document annexed at SCR-1 was not filed previously.[3] Relevantly, Ms Roberts said:
The second s 46A decision was not provided to the Court before 26 February 2020 because, until that time, it was not relevant to any issue raised by the grounds of review set out in the applicant’s application to this Court. The second s 46A decision was not provided to the Court at the hearing on 5 March 2020 as a result of an error in identifying the correct s 46A decision.[4]
[3] Affidavit of Ms Sophie Caroline Roberts filed on 7 April 2020 at paragraphs 7 to 24.
[4] Affidavit of Ms Sophie Caroline Roberts filed on 7 April 2020 at paragraph 7.
Ms Roberts stated that the amended application filed on 26 February 2020 contained a new ground, namely ground two, which for the first time alleged that ‘the first respondent’s exercise of his power under s 46A(2) of the Act in relation to the applicant was contrary to law.’ [5]
[5] Affidavit of Ms Sophie Caroline Roberts filed on 7 April 2020 at paragraph 19.
Ms Roberts further stated:
The first s 46A decision was filed in error. Because it relates to a decision by the first respondent to exercise his power under s 46A(2) of the Act to enable the applicant to apply for a TPV and not a SHEV, it is not relevant to any fact in issue in the proceeding. Instead, the second s 46A decision should have been filed. It is relevant to the second ground in the applicant’s amended application served on 26 February 2020 because it is the decision the lawfulness of which is challenged by that ground.[6]
[6] Affidavit of Ms Sophie Caroline Roberts filed on 7 April 2020 at paragraph 24.
On 14 April 2020, the applicant filed an affidavit affirmed by the applicant’s legal representative, Mr Luke McLean. Annexed to that affidavit was an email sent to Ms Roberts on 19 March 2020. In that email, Mr McLean said:
… the applicant does not consent to the filing of the supplementary court book.
However, the applicant would not oppose the filing of an affidavit in the nature of an affidavit of documents, annexing the document contained within the supplementary court book, explaining where the document came from, why it was not provided earlier and confirming that there are no other documents in the first respondent’s possession or control that are relevant to the proceeding that have not already been provided to the Court.[7]
[7] Affidavit of Luke McLean affirmed and filed on 14 April 2020 at annexure LRM-1.
On 16 April 2020, the first respondent filed a further affidavit affirmed by Ms Sophie Roberts annexing further correspondence between the applicant and the first respondent dated 14 and 15 April 2020. Relevantly, that correspondence included:[8]
a)an email on 14 April 2020, from the applicant’s representative to the first respondent’s representative in which the applicant foreshadowed seeking a declaration pursuant to rule 14.02 of the Rules and section 45 of the Federal Circuit Court of Australia Act 1999 (Cth) and raised the possibility that the applicant would also seek an order for general discovery following such a declaration being made.;
b)an email in response sent by the first respondent’s representative to the applicant’s representative on 14 April 2020 in which Ms Roberts:
i)confirmed that she would be available for cross examination;
ii)invited the applicant to withdraw the application for summary judgement; and
iii)queried the basis on which any application for discovery might be made; and
c)a further reply email from the applicant’s solicitor dated 15 April 2020.
[8] Affidavit of Sophie Caroline Roberts affirmed on 15 April 2020 and filed on 16 April 2020 at annexure SCR-1.
In Ms Roberts’ email of 14 April 2020, she relevantly said:
In order to permit any application for discovery to be heard and determined on Friday, we would be prepared to consent to an order allowing the applicant to file the foreshadowed application, and any submissions in support, by no later than 4.30pm tomorrow. The respondent could then file submissions in response by 4.30pm on Thursday. It would not be appropriate for the applicant to seek to make the application for discovery orally at the hearing on Friday, potentially necessitating the parties having to come back on another occasion. Nor would it be appropriate for the hearing of the matter to be adjourned for the purpose of allowing the applicant to make an application for discovery, in circumstances where we consider there is no basis for such an application, and no explanation has been offered for the applicant’s failure to comply with r 6.19.[9]
[9] Affidavit of Sophie Caroline Roberts affirmed on 15 April 2020 and filed on 16 April 2020 at annexure SCR-1.
In the applicant’s response on 15 April 2020, Mr McLean relevantly said:
We do not intend to make a formal application for discovery and consider that your reference to r 6.19 is inappropriate - … Even if that is wrong, the purpose of service is to give advance notice of any application, which you have. And even if that is wrong, we note that the Court can make a discovery order of its own motion. We will urge the Court to take this course.
…
The application for summary judgement will be withdrawn.[10]
[10] Affidavit of Sophie Caroline Roberts affirmed on 15 April 2020 and filed on 16 April 2020 at annexure SCR-1.
When the matter came on for hearing before me on 17 April 2020, the applicant raised what was described as:
the Minister’s repeated and protracted noncompliance with an order of this Court. The request for a response to that noncompliance arises from unusual circumstances and highly irregular conduct by the Minister in this particular case.[11]
[11] Transcript dated 17 April 2020 page 2 at lines 16 to 19.
In essence, it was submitted that in circumstances where the first respondent has, in the applicant’s words, ‘drip fed’[12] documents to the applicant and to this court, the court can have no confidence that all relevant documents have been provided by the first respondent. It was further submitted that in public law proceedings where, by its very nature, an applicant is at a disadvantage in that the first respondent has access to most, if not all relevant information, there is a high standard imposed on the first respondent to provide all relevant documents in its possession.[13]
[12] Transcript dated 17 April 2020 page 13 at line 29.
[13] Transcript dated 17 April 2020 page 12 at lines 41 to 46.
It was submitted that has clearly not occurred in this case, and in the absence of an affidavit from the first respondent (or its legal representative) that all relevant documents have been provided, the court ought to make an order for general discovery.
The heart of the applicant’s concern is that the first respondent seems to be making a distinction between documents relevant to the visa application and documents relevant to the grounds of review.[14] The applicant further stated that it was open to Ms Roberts to give evidence that all relevant documents have now been provided as ordered in May 2017 orders. It was further submitted that if Ms Roberts failed to do so, then the ‘court cannot have confidence, three years later, that its own order has been complied with.’ [15]
[14] Transcript dated 17 April 2020 page 7 at lines 21 to 28.
[15] Transcript dated 17 April 2020 page 7 at lines 34 to 36.
When asked what orders were therefore being sought, counsel for the applicant said:
… we have no difficulty with her giving … evidence to clarify here and now that all documents, relevant to the proceeding, have been provided. If she doesn’t give that evidence, … the appropriate course for the court to take is to require … compliance with an order of this court from 2017 and that can either be done by restating, although as I say, it’s an affront to the court that an order has to be restated or the court can order, effectively discovery and the test …. under the rules for discovery, in this court are that it’s in the interests of the administration of justice.[16]
[16] Transcript dated 17 April 2020 page 7 at lines 41 to 47 and page 8 at lines 1 to 3.
In response, it was submitted for the first respondent that an order for discovery is not necessary nor appropriate in the circumstances of this case.
It was submitted for the first respondent that it is well established that discovery of documents is only for discovery of those documents which are relevant to the issues in dispute in a proceeding.[17] It was submitted that in a judicial review application, the ‘issues in dispute’ are determined by reference to the grounds of review.
[17] Transcript dated 17 April 2020 page 10 at lines 11 to 13.
In Jilani v Wilhelm (2005) 148 FCR 255, the Full Court of the Federal Court summarised the principles which apply to discovery in the context of judicial review applications.[18] Relevantly, referring to the decision in Nestle Australia Limited v Commissioner of Taxation (1986) 10 FCR 78, the Full Court noted:
Wilcox J went on, at 83, to refer to the decisions in WA Pines and Lloyd v Costigan … The effect of those authorities is that it is not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation.[19]
[18] Jilani v Wilhelm (2005) 148 FCR 255 at [108] to [113].
[19] Jilani v Wilhelm (2005) 148 FCR 255 at [111].
The court went on to say:
There must be sufficient definition of the issues to enable the Court to see that the documents sought on discovery relate to a live issue; there must at least be something from which the Court can see that there is a real issue the proof of which would be assisted by discovery. …[20]
[20] Jilani v Wilhelm (2005) 148 FCR 255 at [112].
The issue in this case is how the ‘issues in dispute’ are to be determined in a judicial review application.
It was submitted for the applicant that the orders made by this court on 24 May 2017 required the first respondent to produce a court book with all documents relevant to the visa application. Had this been done, the documents relating to the section 46A issue would have been disclosed.
It was further submitted for the applicant that the statement made by Ms Roberts at paragraph [6] of her affidavit affirmed on 7 April 2020, when viewed in the context of the ‘drip feeding’ of documents by the first respondent in this matter, does not go far enough to satisfy the court that all relevant documents have been provided.
The basis for this submission is that the statement made relates to documents relevant to the grounds of review and not relevant to the visa application more generally.
Whilst the applicant and the court might rightly be critical of the first respondent’s failure to identify the correct section 46A document which led to an unnecessary application and further delay, that issue was dealt with and costs were fixed and ordered against the first respondent.
I accept that the filing of the applicant’s amended application on 26 February 2020, which differed significantly from the first application, and indeed from the draft amended application provided to the first respondent, significantly changed the issues raised in the review application.
As noted in Jilani v Wilhelm (2005) 148 FCR 255, in considering whether to make an order for discovery, the court must have regard to the fact that discovery ought not be used as a ‘fishing expedition’ and any order for discovery ought to relate to the production of documents which may be relevant to a live issue. In a judicial review application, the issues in dispute are determined by reference to the grounds of review.

In that context, the affidavit of Ms Roberts deposed to the fact that the Department has no other documents relevant to the issues raised by the grounds of review. In those circumstances, it would not be in the interests of justice for an order for general discovery to be made, if the purpose of such an order would be to require the first respondent to produce all documents in his possession, power and control relating to the visa applicant.
For each of these reasons, I dismiss the applicant’s oral application for discovery.
As to the future conduct of the matter, I direct that the matter be listed for directions on 15 June 2021 at 10:00am.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 30 April 2021