Fud18 v Minister for Home Affairs
[2020] FCA 1897
•31 January 2020
FEDERAL COURT OF AUSTRALIA
FUD18 v Minister for Home Affairs [2020] FCA 1897
File number: NSD 1705 of 2018 Judgment of: THAWLEY J Date of judgment: 31 January 2020 Catchwords: PRACTICE AND PROCEDURE – application to re-open to tender further evidence
EVIDENCE – whether documents sought to be tendered were relevant and admissible
Legislation: Migration Act 1958 (Cth) ss 501(1), 501(6)(h) Cases cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 6 Date of hearing: 31 January 2020 Counsel for the Applicant: Mr T Brennan with Mr N Sedaghati Solicitor for the Applicant: Kinslor Prince Lawyers Counsel for the Respondent Mr G Johnson SC with Mr M Cleary Solicitor for the Respondent Australian Government Solicitor ORDERS
NSD 1705 of 2018 BETWEEN: FUD18
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
THAWLEY J
DATE OF ORDER:
31 JANUARY 2020
THE COURT ORDERS THAT:
1.The respondent is granted leave to re-open.
2.The respondent’s tender bundle filed on 20 November 2019 be admitted into evidence.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)THAWLEY J:
The Minister applied to reopen for the purpose of tendering a bundle of documents filed on 20 November 2019. No objection was made to the application to reopen but objection was taken to the admissibility of the documents in the tender bundle, primarily on the basis of relevance, but also because parts of the documents were said to include inadmissible opinion evidence. The documents largely comprise correspondence with Interpol and a decision given by Interpol in respect of a request by the applicant for the Interpol Red Notice to be deleted. The reasons of Interpol included what might be described as expressions of opinion.
The primary relief sought by the applicant in the proceedings is a writ of prohibition. The writ is sought on the contended basis that the Interpol Red Notice could not reasonably give rise to the inference that the applicant would present a risk to the Australian community or a segment of it. The applicant contends that the inference must be drawn only from the Interpol Red Notice and not from other material. This is why the material is said to be irrelevant.
The applicant also seeks a writ of mandamus requiring the Minister to determine the applicant’s visa application. The applicant does not, however, seek a writ of mandamus absent also obtaining a writ of prohibition.
A part of the context of the proceeding is that the Minister has issued a notice of intention to consider refusing the visa in which he has made reference to section 501(6)(h) of the Migration Act 1958 (Cth). It is important to appreciate that this does not mean that the Minister is necessarily confined to a consideration of that provision for the purpose of determining the visa application. The documents are relevant in proving the existence of material which is in the Minister’s possession to which he might wish to have regard in determining the visa application, whether or not such use would require release from a Harman v Secretary of State for the Home Department [1983] 1 AC 280 undertaking if the documents were not tendered. The question of the relevance of the documents does not revolve solely around their relevance to the proper construction of section 501(6)(h).
The documents contain information additional to the information contained in the Interpol Red Notice and are potentially relevant to be considered in determining whether the visa should be refused on some basis other than section 501(1) as read with section 501(6)(h) of the Act. The documents are also relevant in establishing the existence of facts which the Minister might wish to obtain by some other method assuming that the obtaining of the information by that other method would not breach the Harman undertaking. It seems to me, therefore, that the documents are relevant to whether this Court should grant the relief sought or what relief, if any, should be granted. The fact that some of the documents contain opinions is not to the point. The Minister is not constrained in the same way as a Court in the way he assesses the material before him.
Of course, once tendered, there could be no requirement for the Minister to seek the release from a Harman undertaking. However, that is a separate issue. The documents are presently relevant and admissible on the bases identified, which include the question of the relief which this Court should grant. Accordingly, I grant leave to the respondent to re-open and I admit the respondent’s tender bundle.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley. Associate:
Dated: 4 July 2022
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