NAQR & Ors v Minister for Immigration (No 1)
[2002] FMCA 271
•29 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAQR, NAQS, NASY & NATM v MINISTER FOR IMMIGRATION (No.1) | [2002] FMCA 271 |
| MIGRATION – Review of Refugee Review Tribunal decisions – protection visas – whether interrogatories can be directed to the RRT. PRACTICE AND PROCEDURE – Interrogatories and discovery – presumption against interrogatories and discovery – consideration of circumstances in which interrogatories or discovery orders may be appropriate. COSTS – Reservation of costs of interlocutory applications. |
Administrative Appeals Tribunal Act 1975 (Cth), s.60
Family Court Rules
Federal Court Rules
Federal Magistrates Act 1999 (Cth), ss.3, 45, 435
Federal Magistrates Court Rules 2001(Cth)
Migration Act 1958 (Cth), ss.418
Herijanto v Refugee Review Tribunal (2000) 74 ALJR 698
The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
| Applicants: | NAQR NAQS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Nos: | SZ634 of 2002 SZ633 of 2002 |
| Delivered on: | 29 October 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 29 October 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicants: | Mr M Jones Michael Jones, solicitor |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Australian Government Solicitor, also appeared on behalf of Sparke Helmore and Clayton Utz |
ORDERS
Each application seeking declarations for interrogatories is dismissed.
Costs of today’s applications are reserved.
Parties have liberty to apply for further orders or directions on five days notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ634 of 2002
SZ633 of 2002
SZ737 of 2002
SZ771 of 2002
| NAQS NAQR NASY NATM |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These ex tempore reasons relate to four procedural applications in identical terms in these matters for a declaration permitting interrogatories to be delivered to the Refugee Review Tribunal (“the RRT”) which made decisions in these matters now subject to applications for review. The review applications are supported by affidavits asserting a systemic failure on the part of the RRT to have regard to documents that should have been before it. Each of the procedural applications seeks orders permitting the following interrogatories to be delivered.
(1)What was the date on which the RRT gave notice to the Secretary of the Department of Immigration & Multicultural & Indigenous Affairs, pursuant to s.418(1) of the Migration Act 1958 (Cth) (“the Migration Act”) when an application for review had been made by the applicants?
(2)What documents, if any, were given to the RRT by the Secretary pursuant to section 418(3) of the Migration Act in relation to this application?
(3)When were the documents referred to above given to the RRT and in what form?
(4)When the RRT wrote to the applicants on [the relevant date in each matter] a letter beginning with the statement:
The Tribunal has looked at the material relating to your application.
What in detail was the material to which the RRT was referring?
Section 45 of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”) deals with interrogatories and discovery. Subsection 45(1) provides that interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate in the interests of administration of justice to allow the interrogatories or discovery.
Subsection 45(2) provides that in deciding whether to make a declaration under subsection 45(1) the Federal Magistrates Court or a Federal Magistrate must have regard to:
b)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and
c)such other matters, if any, as the Federal Magistrates Court or the Federal Magistrate considers relevant.
The Federal Magistrates Court Rules 2001 (Cth) (“The Federal Magistrates Court Rules”) provide in Rule 14.01 that a declaration may be made under s.45(1) of the Federal Magistrates Act to allow interrogatories on the application of a party or on the Court's own motion. Secondly, that if a declaration is made the Court or a Registrar may make appropriate orders in relation to answers to specific questions having regard to any relevant Family Law Rules or Federal Court Rules (“the Federal Court Rules”).
Two things are immediately apparent from s.45 of the Federal Magistrates Act and the rule 14.01. The first is that there is a rebuttable presumption in proceedings in this Court that discovery and interrogatories will not be permitted. That is consistent with Parliament's direction (s.3 Federal Magistrates Act) that the Court should act informally and use streamlined procedures. Secondly, where a Federal Magistrate or a Court decides that interrogatories or discovery should be permitted in a particular case, reference should be made to the relevant rules on discovery or interrogatories in the Family Court or the Federal Court.
Mr Smith, for the respondent Minister, has directed my attention to Order 16, rule 1 of the Federal Court Rules which makes clear that in the Federal Court interrogatories may only be delivered to a party.
I am not aware of any authority that would permit interrogatories to be delivered to a non-party. That is the first and possibly the most important objection to the interrogatories sought to be delivered to the RRT. It is not a party to these proceedings. The parties are the applicant and the respondent Minister.
In addition, I would be concerned about any proposition that the RRT should be made a party for the purposes of dealing with interrogatories. The RRT is an adjudicative decision maker which, even when it was formerly a party to judicial proceedings under superseded provisions of the Migration Act, did not take an active part in those proceedings, consistently with the Hardiman principle that an adjudicative decision maker should not become actively involved in adversarial proceedings: The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36. Requiring an adjudicative decision maker to answer interrogatories could draw in the RRT to active participation, depending on the width of the interrogatories sought to be delivered.
I accept Mr Jones' submission that in principle there are a range of administrative matters that any decision maker could be interrogated about without requiring that decision maker to be actively involved in adversarial proceedings relating to the decision of that administrative decision maker. Nevertheless, as a matter of principle I would resist any effort to join the RRT or the Migration Review Tribunal to proceedings in this Court in order to subject the tribunals to interlocutory orders. It ought to be possible for proceedings of this nature to be dealt with between the ordinary parties, being the applicant and the Minister.
A further objection to these interrogatories relates to proposed interrogatory 4. That is objected to on the basis that it would be an impermissible interference with the independence of the RRT provided under the Migration Act. That was an issue that was dealt with by the High Court in Herijanto v Refugee Review Tribunal (2000) 74 ALJR 698. In that case her Honour Gaudron J observed at paragraph 3 that s.435 of the Migration Act provides that a member of the RRT has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal.
Further, s.60(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a member of the AAT has in the performance of his or her duties the same protection and immunity as a Justice of the High Court. Her Honour went on to say:
The protection and immunity enjoyed by a Justice of [the High Court] is not the subject of legislative provision. Rather, he or she has such protection and immunity as is conferred by the common law and, perhaps, such as is to be derived by implication from Chapter III of the Constitution.
Her Honour was at pains to point out in paragraphs 11–13 of her judgment that this protection is not limited to protection from civil suit. It extends to protection from being called to account for decisions made. The members of the RRT cannot be compelled to answer questions about why they made decisions or what documents they did or did not look at in the course of coming to a decision. The RRT is bound to provide reasons for its decisions and its decisions are subject to judicial review on the basis of those reasons. Herijanto is strong authority binding upon me that I should not allow any interrogatories which would require from the RRT a further explanation as to how or why it came to its decision.
Mr Jones has put to me that all interrogatory 4 requires is that the staff of the RRT responsible for letters sent to the applicants stating that the RRT had “looked at all the material relating to your application” provide an explanation of what was meant in that letter. I think the answer to that submission is that the staff would not know and should not be expected to speculate about what was in the Presiding Member's mind at the time the Member was coming to his or her view. All the staff could answer in response to such an interrogatory is what material was before the RRT. In each of these cases the reasons for decision of the RRT state what material was before the RRT; that being the Departmental file and in one case particular documents on the RRT’s own file. In addition, the reasons for decision indicate what country information was regarded as important by the presiding member.
Further, the court books prepared by the respondent Minister's legal advisers for the purposes of these proceedings ostensibly contain all documents relevant to the particular applications which were before the RRT in each of these cases. In my view interrogatory 4, limited to what would be permissible in terms of the independence of the RRT, would not provide an answer of any real assistance to these applicants. In addition, in the absence of interrogatory 4, interrogatories 1, 2, 3 would not advance the claims made by these applicants.
I therefore conclude for the purposes of s.45 of the Federal Magistrates Act that I should not make a declaration that it is in the interests of the administration of justice to allow the interrogatories sought to be delivered, whether those interrogatories would be delivered to the RRT or to the respondent Minister. I note in passing that there is plenty of authority in migration proceedings that interrogatories may be delivered to the respondent Minister in circumstances where the issue is raised in reasonable time and where the interrogatories would assist in resolving matters raised by the applicants.
The alternative course to the delivery of interrogatories is to permit limited discovery. As I have already noted, the court books in these matters contain documents said to be before the RRT in each case and said to be relevant to these applications. I have indicated that I might be prepared to allow limited discovery of any other documents which were provided by the Minister's department to the RRT for the purposes of its consideration of the relevant visa applications.
Mr Smith, for the respondent Minister, has submitted to me that a discovery order is unnecessary because in migration proceedings the Minister has been prepared to give informal discovery and, consistently with that approach, court books are prepared in each case. Mr Smith has pointed out that it is no easy task to determine what material was made available to the RRT in particular cases. Particular documents are specifically made available in particular cases, for example documents on the Departmental file in each case. Other material is made available more generally in the form of library resources, country information, documents and data bases that can be accessed by the RRT as it sees fit in particular cases. The Minister, through his department, should not be expected to attempt to identify what general information was accessed by the RRT in a particular case. That should be apparent from the decision and reasons of the RRT and anything else that appears in the court book.
I have accepted an undertaking from Mr Smith in these proceedings to review Departmental information in order to determine whether any material in addition to what is in the court books in these matters was made available by the Department to the RRT specifically for the purposes of it dealing with these visa applications. In my view, that is sufficient to permit the applicants to seek to advance the matters they have raised in their principal applications. I will, however, give the parties liberty to apply for further directions or orders should that be necessary in order to resolve any issues arising from the undertaking Mr Smith has given.
In each of these matters therefore I will order that the applications seeking declarations for the delivery of interrogatories be dismissed and I will give the parties liberty to apply for further directions or orders on five days' notice.
On the issue of costs, Mr Smith, for the Minister, has sought an order for costs in his favour in each matter without the amount of costs being quantified. Mr Jones submits that costs of these procedural applications should be costs of the general cause. The applications seeking interrogatories have been unsuccessful. However, the outcome has not been wholly to the disadvantage of the applicants, given the undertaking that was properly made by Mr Smith. In my view, in the circumstances of these matters I should reserve costs of these procedural applications and consider those costs in the general outcome of the substantive applications at the end of the proceedings. That is what I will do. I will therefore order that costs of these applications today be reserved.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 November 2002
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