DXI19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 853
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXI19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 853
File number: MLG 3443 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 22 September 2023 Catchwords: PRACTICE AND PROCEDURE – whether party should be required to file evidence addressing searches undertaken in response to a notice to produce – where documents requested in notice to produce do not relate to any ground currently before the Court – where the evidence does not suggest that compliance with the notice to produce is insufficient Legislation: Migration Act 1958 (Cth) ss 473CB, 476 Cases cited: CKY19 v Minister for Immigration and Anor (No 2) [2020] FCCA 1776
Hexiva Pty Ltd v Lederer [2006] NSWSC 561
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 14 September 2023 Place: Perth Counsel for the Applicant: Mr B Mostafa Solicitor for the Applicant: Varess Counsel for the First Respondent: Mr C Fitzgerald Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 3443 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXI19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s informal application for the Court to order the first respondent to file and serve an affidavit addressing the searches undertaken to respond to the notice to produce filed by the applicant on 4 September 2023 is refused.
2.The hearing listed on 12 October 2023 is vacated.
3.The matter is listed for final hearing on 9 February 2024 at 11:00am AWST / 2:00pm AEDT.
4.Reasons for these orders will be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
At a directions hearing on 14 September 2023 I made the following orders:
(1) The applicant’s informal application for the Court to order the first respondent to file and serve an affidavit addressing the searches undertaken to respond to the notice to produce filed by the applicant on 4 September 2023 is refused.
(2) The hearing listed on 12 October 2023 is vacated.
(3) The matter is listed for final hearing on 9 February 2024 at 11:00am AWST / 2:00pm AEDT.
(4) Reasons for these orders will be published from Chambers at a later date.
These reasons are provided in accordance with order 4 above.
RELEVANT CONTEXT
The substantive application before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). The applicant was self-represented at the time he filed the application but now has a legal representative and a notice of appointment was filed on the applicant’s behalf on 4 September 2023.
On 4 September 2023 a notice to produce addressed to the Minister was filed on behalf of the applicant, which requested that the Minister produce:
1.any written, audio and/or visual recording of any transferee interview conducted with the applicant (Transferee Interview);
2.any document recording the date that:
a.any record of the Transferee Interview came into the possession or control of Immigration;
b.if applicable, Immigration ceased to have in its possession or control that record of the Transferee Interview;
3.any document held by Immigration relating to the applicant’s transfer to or from, or time on, Manus Island, that records any information regarding events claimed by the applicant to have happened in Afghanistan.
On 11 September 2023 the applicant’s lawyer emailed my associate requesting a directions hearing in respect of the applicant’s notice to produce. It was foreshadowed in that email that, at the requested directions hearing, the applicant would seek an order requiring the Minister to file an affidavit explaining the steps taken to identify documents answering the notice to produce and advising whether the Minister’s department (Department) had ever received records of the transferee interview, and if so, why those records are no longer in the Department’s possession.
The directions hearing was listed on short notice given that the application was listed for final hearing on 12 October 2023.
EVIDENCE RELIED ON AND SUBMISSIONS MADE BY THE PARTIES AT THE DIRECTIONS HEARING
An affidavit of Farid Varess was filed on behalf of the applicant on 13 September 2023 in support of the foreshadowed request for the Court to order the Minister to file an affidavit (Varess affidavit). The Varess affidavit was read at the directions hearing, save for paragraph 10(d) and pages 30-54 which form part of an exhibit.
At the directions hearing, Counsel for the applicant submitted that the Court should order the Minister to cause an affidavit to be filed on his behalf:
(a)identifying the steps that have been taken to identify documents that answer the notice to produce; and
(b)identifying, so far as the deponent is able, whether the Department ever received records of the transferee interview conducted with the applicant and, if so, why those records are no longer in the Department’s possession.
The Varess affidavit indicates that the applicant told Mr Varess he attended an interview on Manus Island on 19 June 2013, at which he explained the problems that he had with the Taliban, and the applicant provided handwritten notes that he made setting out what he said at that interview. That interview has been referred to in the notice to produce and in the parties’ submissions as the transferee interview, and I will likewise refer to it in this manner.
Counsel for the applicant submitted that the notice to produce, and the order sought at the directions hearing, relate to any records that the Department may have held in relation to the applicant’s transferee interview. Counsel for the applicant submitted that if the information about what the applicant said at the transferee interview had been before the Authority, the Authority decision may have been different.
Counsel for the applicant acknowledged that the Minister’s lawyer said that the Department does not have a copy of the transferee interview conducted with the applicant. However, the applicant and his legal team do not know what searches were undertaken in coming to that conclusion. Counsel for the applicant referred to the case of CKY19 v Minister for Immigration and Anor (No 2) [2020] FCCA 1776 (CKY19), [28], [31]-[33] of which make clear that the Department did have in its possession the record of a transferee interview conducted on Manus Island with a different applicant only one month before the applicant’s transferee interview. Counsel for the applicant submitted that even if the Minister does not now have any record of the transferee interview, that does not indicate whether the Minister never held any records of the transferee interview, or whether the Minister or his Department previously held the records at the time of the referral of the matter to the Authority, which is the relevant time for the purposes of complying with s 473CB of the Migration Act.
Counsel for the applicant submitted that the Court has the discretion to make the order sought, and should make that order in circumstances where the records are important to the applicant and the applicant has no visibility over the steps that have been taken or why the Department does not have a record of his transferee interview, especially when the Department held a copy of a transferee interview in another case.
The applicant has foreshadowed that this information is relevant to a potential ground based on a failure to comply with s 473CB of the Migration Act and submitted that it is of no real moment that the ground has not yet been raised. Counsel for the applicant also submitted that the applicant is not alleging that the Minister has not properly responded to the Notice to Produce, in relation to which one document was produced, and does not dispute the assertion in email correspondence from the Minister’s lawyers to the effect that searches have been undertaken and no documents have been located. Rather, the applicant’s concern is that he has no visibility of what searches were undertaken and he believes that he is entitled to that information given the importance of the documents to his case.
Counsel for the Minister submitted that it is relevant that the applicant does not say that the Department did not take appropriate searches and is rather more concerned with whether those searches are adequately explained. Counsel for the Minister referred to email correspondence from the Minister’s lawyers to the applicant’s lawyers sent on 13 September 2013 set out at page 78 of the Varess affidavit, which relevantly states:
Our client has undertaken additional searches following additional information provided below. We are instructed that:
1. The Department does not have any audio or written record of an interview having taken place on Manus Island on 19 June 2013 in relation to your client, nor any record of your client having been interviewed on this day.
2. Transferee interviews are conducted by the regional processing country, which for Manus Island was Papua New Guinea. Any documents or recordings produced in that process are owned by the regional processing country.
3. In the absence of records, the Department cannot confirm whether or not an interview in relation to your client was conducted by officials from Papua New Guinea.
Counsel for the Minister submitted that the applicant cannot rely on the fact that a document existed in another proceeding as evidence that there is reason to believe that further documents exist. The Minister’s Department has taken steps to prepare for hearing, steps to respond to the Notice to Produce and has confirmed through the Minister’s solicitor that there is nothing further to provide.
REASONS FOR NOT REQUIRING THE MINISTER TO FILE AN AFFIDAVIT
Both parties have proceeded on the basis that I have a discretionary power to require the Minister to file an affidavit of the type sought by the applicant. In this regard, the applicant referred the Court to Hexiva Pty Ltd v Lederer [2006] NSWSC 561 where Brereton J said at [14]:
The law relating to the procedure to be followed when a party who has issued and served a subpoena for production wishes to test the sufficiency of compliance with that subpoena was discussed by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306. His Honour referred to what had been written by Moffitt J in H H Glass, Seminars on Evidence (1970) (at 10–11). Moffitt J, in that extrajudicial writing, observed that there seemed no reason why the court should not have a discretion to ask of a person, who was required to produce documents on subpoena, questions to ascertain the sufficiency of compliance, either informally or on oath. He continued:
In exercising such a discretion, the court would not infringe the privilege of a person not to incriminate himself, having regard to the fact that deliberate non compliance with a subpoena is a contempt of court with penal consequences … Any such discretion could not extend as far as conducting a discovery process … The precise limits of questions of a person subpoenaed to produce documents are debatable, but it seems that a judge could ask and possibly permit to be asked, questions informally or on oath to ensure that the party understood the terms of the subpoena and the documents referred to and his obligation thereunder, including his obligation regarding documents in his possession or power and relating to search … It would seem, however, that questions could not extend to establishing proof that the person was in contempt of court, nor could they be of the search and inquiry type such as to the person's knowledge as to the location of documents not in his present possession or control, or as to the nature of other documents in his possession not within the scope of the subpoena, or as to his system of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed.
There are two main reasons why I declined to order the Minister to file an affidavit setting out the steps taken.
First, I consider it to be relevant, albeit not fatal, to the request for the order requiring the Minister to file an affidavit that there is not currently any ground based on s 473CB of the Migration Act in the application before the Court. While I acknowledge that Counsel for the applicant has indicated that the proposed ground would be similar to that raised in CKY19, the reality is that the ground has not yet been raised.
It is apparent that the applicant filed the notice to produce with a view to exploring whether a ground based on s 473CB of the Migration Act has reasonable prospects of success. It is open to the applicant to take the Minister’s response to the notice to produce into account in deciding to whether to amend the application to raise such a ground. If the applicant does raise such a ground, the Minister will have a forensic choice to make in relation to the evidence to file in response to that ground (just as the applicant will have a forensic choice to make about what evidence he files in support of the ground). Although Counsel for the Minister did not raise this issue in his submissions, I consider that a cautious approach is required when the Court is being asked to exercise a discretion in a way that would require the Minister to file affidavit evidence addressing the matters identified at [8] above, where such evidence does not appear to be relevant to any ground currently raised in the application, but is likely to be relevant to a ground that has not yet been raised.
Second, and more importantly, the evidence before the Court does not cause me to believe that the Minister has not sufficiently complied with the notice to produce, and Counsel for the applicant has been careful to avoid accusing the Minister of not sufficiently complying with the notice to produce.
The Varess affidavit shows that there was an exchange of emails between the Minister’s lawyers and the applicant or his lawyers commencing on 28 August 2023 in relation to the transferee interview. The applicant first requested a copy of the transferee interview on 28 August 2023. The response provided by the Minister’s lawyer the following day was that they ‘have not identified any written or audio records relating to the “transferee interview” among the material that was referred to the IAA’. The applicant responded by thanking the Minister’s lawyers for confirming that the transferee interview was not provided to the Authority but continuing to request that he be provided with a copy of all written and audio records relating to the transferee interview. There followed an exchange of emails about whether the transferee interview was relevant to the application before the Court, with the applicant informing the Minister’s lawyers that it was relevant to s 473CB of the Migration Act. On 31 August 2023 the Minister’s lawyers wrote to the applicant advising that they were instructed that the Department had undertaken inquiries and does not have audio or written records of the applicant’s transferee interview.
The applicant then sent an email to the Minister’s lawyer on 31 August 2023, which appears to forward an email drafted by his lawyer, which said in part:
I note your instructions are that your client does not have the Transferee Interview Records I have sought.
Please:
1. re-confirm that your client does not have the Transferee Interview Records;
2. advise if Immigration would have ever had any such Transferee Interview Records;
3. if the answer to point 1 is yes, please advise when Immigration last had any Transferee Interview Records relating to me;
4. provide any records held by Immigration regarding:
a. my transfer to Manus Island in or around January 2014, in particular any records in which my claims for protection have been recorded;
b. my time on Manus Island between around January to July 2014, in particular any records in which my claims for protection have been recorded;
c. my transfer from Manus Island in or around July 2014, in particular any records in which my claims for protection have been recorded.
After the Minister declined to provide a substantive response to this request, the applicant filed the notice to produce, and in serving the notice to produce on 4 September 2023, provided more detailed reasons as to why the applicant considers that the documents are relevant to the application before the Court.
I infer from the emails attached to the Varess affidavit that a telephone conversation took place between the applicant’s lawyer and the Minister’s lawyer sometime on or before 8 September 2023. The Minister’s lawyer then sent an email to the applicant’s lawyer in the following terms:
Thank you for your time on the phone earlier.
Regarding the notice to produce filed on 4 September 2023, we are instructed as follows.
Our client does not consider that your client has a legitimate forensic purpose in seeking documents within all of the categories set out in the notice to produce. In particular, category three as currently expressed is overly broad and an impermissible attempt at fishing for information.
Without detracting from that position, we are instructed that in this instance, our client has undertaken searches and has only found a single document that is potentially responsive to the categories in any event. A copy of that is attached with redactions applied to the names of third parties.
Our client has now met its obligations under the notice to produce and does not intend to take any further steps. Our client otherwise reserves its position as to the validity of the categories of documents sought in the notice.
Despite the indication that the Minister did not intend to take any further steps in response to the notice to produce, there were clearly further communications between the parties and further steps taken by the Department. Although the Minister declined the applicant’s request to file an affidavit setting out the searches undertaken in response to the notice, the email sent on 13 September 2023, extracted at [14] above, clearly indicates that the Department undertook further searches in response to additional information provided by the applicant, and still was unable to locate any record of the transferee interview.
Taking into account the various email communications between the parties’ lawyers, in particular those communications from the Minister’s lawyer sent on 8 and 13 September 2023, extracted at [24] and [14] above respectively, it is apparent that the officers of the Minister’s Department conducted searches of records held by the Department to comply with the notice and then conducted additional searches even after the Minister considered that he had complied with the notice. There is nothing in these communications to suggest that the Minister has not appropriately and sufficiently complied with the notice to produce.
The Department may have records of transferee interviews in relation to other applicants in its possession and control. It appears from the judgment in CKY19 that the Department had in its possession a record of a transferee interview in relation to that applicant. However, even if that is the case, that does not amount to a reason to believe that the Department had, or once had, in its possession or control any record of a transferee interview in relation to the present applicant. The evidence before the Court suggests that officers of the Department have conducted searches for documents within the scope of the notice to produce and located only one relevant document, which was not a record of the transferee interview. Further, the email sent on 13 September 2023 explains that any documents or recordings produced in the process of conducting a transferee interview are owned by the regional process country. That records of some transferee interviews may have been provided to the Department at some stage does not indicate that all records of all transferee interviews were provided to the Department.
I appreciate that the applicant has a desire to know exactly what steps have been undertaken by the Minister to comply with the notice to produce, and that at least some of the documents sought in the notice might be relevant to a ground that the applicant may wish to pursue. However, I do not accept the submission that he is entitled to the information about the searches undertaken by or on behalf of the Minister to comply with the notice to produce, when there is no reason to doubt that the Minister’s compliance with that notice was sufficient.
Insofar as the applicant seeks that the Minister cause an affidavit to be filed identifying whether the Department ever received records of the transferee interview conducted with the applicant and, if so, why those records are no longer in the Department’s possession, I observe that documents recording the date that any record of the transferee interview came into or ceased to be within the possession or control of the Department were required to be produced under the notice to produce. Where there is no basis to believe that the Minister has not sufficiently complied with the notice to produce, I am not prepared to order the Minister to file an affidavit setting out this information.
ADJOURNMENT OF HEARING AND COSTS
The programming orders in place at the time of the directions hearing required the applicant to file and serve any amended application, any further evidence and submissions on the day of the directions hearing. During discussion about the possible variation of these orders, the applicant requested that the hearing be adjourned to a later date. This was not opposed by the Minister.
In circumstances where the applicant has recently appointed a lawyer, who is actively taking steps to identify relevant grounds and progress the application, and where the request to adjourn the hearing was not opposed by the Minister, I considered that it was appropriate to adjourn the hearing and I have relisted the matter on 9 February 2024.
The Minister also sought costs of the directions hearing. Given that there is a scale that applies to costs in migration proceedings, and the scale amount is a lump sum that applies depending on the stage at which the proceedings are finalised, I considered it to be premature to make any order in relation to costs of the directions hearing at this stage. I indicated to the parties that I would hear submissions in relation to costs at a later date, when the parties have a greater understanding of the costs of the proceedings as a whole.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 September 2023
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