GGD18 v Minister for Home Affairs

[2019] FCCA 442

FEDERAL CIRCUIT COURT OF AUSTRALIA

GGD18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 442

Catchwords:
PRACTICE AND PROCEDURE – Request for production of document – whether document is relevant to ground – no issue identified by the particulars – request refused.

First Applicant:

Second Applicant:

Third Applicant:

GGD18

GGE18

GGF18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3351 of 2018

Judgment of: Judge Street

Hearing date: 26 February 2019

Date of Last Submission: 26 February 2019

Delivered at: Sydney

Delivered on: 26 February 2019

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Nikjoo Lawyers

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The request for production of item 1 in the interlocutory orders on the amended application is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3351 of 2018

GGD18

First Applicant

GGE18

Second Applicant

GGF18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an amended application on 1 February 2019, pursuant to orders made by this Court on 15 February 2019. Those orders refer to providing complete particulars of each ground of review. The orders also identified a requirement for the filing of any evidence by the first respondent. What was filed on 1 February 2019 was not just an amended application but there was included, in the interim prayers for relief, the following two paragraphs:

   1. The first respondent (Minister) is ordered to produce the “Suspected Irregular Entry Vessel Information Report”, relating to the applicants entry into Australia in or around September 2013 at the hearing on 26 February 2019 at 10.3015pm.

   2. The Minister is ordered to produce any and all documents regarding the transfer of the applicants from Nauru to Australia, including but no limited to the notification of the decision to transfer the applicants from Nauru to Australia and the relevant visas the applicants travelled on from Nauru to Australia at the hearing on 26 February 2019 at 10.3015pm.

2. At this stage, Mr Williams, counsel on behalf of the applicant, has called on paragraph 1, and Mr Kaplan of counsel on behalf of the first respondent, has indicated that the document is not produced, on the ground that it is not relevant. Mr Williams contends that the document is relevant to ground 3 because it is asserted it may establish that the applicant landed in a migration zone earlier than the migration zone at Christmas Island on which the applicants are identified as having arrived on 30 September 2013.

3. Mr Williams refers to the court book and the arrival interview document dated 17 November 2013 that refers to the applicants leaving Indonesia “September 2013 approx”. Mr Williams contends that it is possible, because the applicants were on an Australian warship when they were intercepted that they may have been taken first to a different migration zone that may enliven a different argument in respect of the validity of the port and whether the applicants were or were not fast-tracked applicants within the Migration Act 1958 (Cth).

4. These proceedings were commenced on 30 November 2018. The order made by this Court on 15 February 2019 required the identification of the grounds to be advanced. Mr Williams has diligently done so on behalf of the applicants in relation to ground 3. I do not however, accept that there is anything in ground 3 that identifies an issue asserted that the applicants arrived at an earlier migration zone for the purpose of a validity argument in respect of whether the applicants are fast-tracked applicants. 

5. I accept that it is apparent that Mr Williams was seeking an order in respect of a document that may have provided additional information in respect of the applicants’ entry into Australia, however the issue of relevance is to be determined by reference to the issues identified on the application. There is no issue identified on the application where the applicants suggested that they arrived in Australia at some other port. 

6. Had there been such an issue identified by the particulars, it may be that the Court would have taken a different issue in respect of relevance. However the argument identified in ground 3 is an argument in respect of invalidity of the Court on Christmas Island which the Court will determine.

7. Given that this Court made orders providing an opportunity to file an amended application and that it does not on its terms, identify some other earlier place of entry, the mere assertion that it is possible or hypothetically possible, because the applicants do not know where they were, does not identify a basis upon which it can be said that there is an issue that makes relevant the document identified in item 1 of the interlocutory orders. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 March 2019