EWV20 as litigation representative for AFF20 v Minister for Home Affairs

EWV20 as litigation representative for AFF20, the applicant, filed an application for judicial review against the Minister for Home Affairs, the respondent, in relation to the exercise of power under section 501(3) of the Migration Act 1958 (Cth). The applicant sought an order that the respondent answer interrogatories under rule 21.01 of the Federal Court Rules 2011 (Cth). The application was heard by Justice Jagot, who granted the application.

The applicant argued that the respondent had failed to give proper, genuine, and realistic consideration to the merits of the case. The applicant submitted that the respondent had only 61 minutes to review the relevant documentation before making the decision to cancel the applicant’s visa. The Minister opposed the application, contending that the applicant’s pleading disclosed no more than a bare allegation and that the exercise of the Court’s discretion should not be permitted due to the impracticalities for the Minister.

The Court considered the evidence provided by the applicant’s instructing solicitor, Mr Fleming, and Mr Hosking, which indicated that the respondent had possession of the relevant documents from 3.30 pm on 26 May 2020. The Court noted that the evidence contradicted the applicant’s pleaded case, which stated that the respondent had a maximum period of 61 minutes to consider the relevant documentation before making the decision to cancel the visa. However, the Court found that the evidence did not establish that the respondent had read the relevant documentation within the 61-minute window. The Court also considered the Full Court’s decision in Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327, which held that a bare allegation would not suffice to require discovery or interrogatories. The Court found that there was sufficient evidence upon which it was open to conclude that the matter into which enquiry was sought may be made out so that the interrogatories may be considered appropriate.

The Court ordered that the respondent provide written answers to the applicant to the following interrogatories: 1) How many minutes did your consideration (inclusive of reading time) of the brief from your Department occupy, before you made the decision to cancel the applicant’s visa? 2) Did you read the statement of draft reasons, which had been prepared by your Department and had been included in the brief, before you made the decision to cancel the applicant’s visa? Costs were reserved.