O'DONOGHUE v Minister for Immigration
[2010] FMCA 345
•21 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O'DONOGHUE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 345 |
| PRACTICE AND PROCEDURE – Adjournment – principles – alleged failure to disclose documents – relevance of documents – where applicant subject of extradition proceedings – High Court special leave application pending. PRACTICE AND PROCEDURE – Discovery – principles applicable in Federal Magistrates Court – relevance of documents. PRACTICE AND PROCEDURE – Joinder of parties – application to join the Prime Minister – proper parties in relation to an application to review a migration decision. MIGRATION – Migration Review Tribunal – Employer Nomination (Residence) visa. |
| Constitution, ss.61, 62, 64, 75(v) Criminal Code (WA), ss.378, 409 Extradition Act 1988 (Cth), ss.16, 19(2) Federal Magistrates Act 1999 (Cth), ss.3, 18, 42, 45 Federal Magistrates Court Rules 2001 (Cth), r.1.03 Freedom of Information Act 1982 (Cth), ss.33(b), 37(2)(b) Migration Act 1958 (Cth), ss.352(4), 362A, 375A, 476, 477, 479 Migration Regulations 1994 (Cth), Schedule 2, cll.856.213(a), 856.221, 856.222 |
| Abrahams v Qantas Airways Limited (2007) 210 FLR 314; [2007] FMCA 639 Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd (No. 2) [2008] FMCA 690 |
| M. Head, Administrative Law. Context and Critique (2nd Edn) (Sydney: Federation Press, 2008) G. Moens & J. Trone, Lumb & Moens’ The Constitution of the Commonwealth of Australia Annotated (7th Edn) (Chatswood: LexisNexis Butterworths, 2007) |
| Applicant: | VINCENT THOMAS O'DONOGHUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 3 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 March 2010 |
| Date of Last Submission: | 19 March 2010 |
| Delivered at: | Perth |
| Delivered on: | 21 May 2010 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr P. Corbould |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the applicant’s interim application be dismissed insofar as it:
(a)applies to adjourn this matter;
(b)applies to join the Prime Minister as a party to this matter;
(c)applies for discovery in this matter;
(d)seeks an order for damages;
(e)seeks orders for:
(i)liberty to further amend this application; and
(ii)liberty to apply generally.
That the applicant’s interim application be allowed insofar as it applies to amend the application with respect to:
(a)alleged bias;
(b)estoppel arising from alleged undertakings;
and:
(c)the applicant have leave to file a further amended application by 21 June 2010;
(d)the respondents to file an amended response by 5 July 2010.
That the matter be transferred to the docket of Federal Magistrate Raphael.
The matter be adjourned to a directions hearing before Federal Magistrate Raphael on a date to be fixed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 3 of 2010
| VINCENT THOMAS O'DONOGHUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 11 January 2010 the applicant, Mr O’Donoghue, applied[1] to the Court under s.476 of the Migration Act 1958 (Cth)[2] for a review of the Migration Review Tribunal[3] decision dated 15 December 2009[4] which affirmed a delegate’s[5] decision[6] not to grant Mr O’Donoghue an Employer Nomination (Residence) (Class BW) Visa.[7] Subsequently, Mr O’Donoghue has made an interim application[8] to this Court to adjourn the Application, and for other interim orders. After briefly setting out the background to the Application, the grounds thereof, and the final orders sought therein, these Reasons for Judgment deal with the Interim Application.
Background to the Application
[1] “Application”.
[2] “Migration Act”.
[3] “Tribunal”.
[4] “Tribunal Decision”.
[5] “Delegate”
[6] “Delegate’s Decision”.
[7] “Residence Visa”.
[8] “Interim Application”.
General outline
Mr O’Donoghue is an Irish national. He has a Bachelor of Civil Law from the National University of Ireland, and was admitted in Ireland as a solicitor in 1984. He subsequently worked in the law in Ireland, England and other European countries.[9]
[9] Court Book (“CB”) 137-138.
Mr O’Donoghue first arrived in Australia in 2002, on a visitor visa, and was subsequently granted a temporary business visa.[10] Mr O’Donoghue applied for a Residence Visa on 14 November 2003. The application was made on the basis that he was to be employed as a legal consultant by a Queensland law firm, Hope Lawyers.[11]
[10] CB 506.
[11] CB 1-15 and 117-136.
Mr O’Donoghue’s visa application was refused by the Delegate on 26 August 2009.[12] The Delegate was not satisfied that the position at Hope Lawyers remained available, and therefore Mr O’Donoghue did not meet the requirements of cl.856.222 of Schedule 2 to the Migration Regulations 1994 (Cth).[13]
[12] CB 348-350.
[13] “Migration Regulations”; CB 350.
Mr O’Donoghue applied to the Tribunal for review of the Delegate’s Decision on 21 September 2009. The Tribunal was provided with two files[14] from the Department of Immigration and Citizenship[15] for the purpose of the review.[16]
[14] CLF2005/4528 and CLF2009/111874: CB 506.
[15] “Department”.
[16] CB 353-360 and 506.
On 7 November 2009 Mr O’Donoghue requested the Tribunal to provide disclosure of all documents in regard to his case.[17]
[17] CB 422-424.
Under cover of a letter of 12 November 2009, the Tribunal provided Mr O’Donoghue with a complete copy of:
a)the Tribunal file; and
b)all disclosable folios from the two Departmental files referred to above.[18]
[18] CB 429-430.
On 11 December 2009 Mr O’Donoghue made a request to the Tribunal under the Freedom of Information Act 1982,[19] for access to all documents in relation to this matter.[20] Following clarification of the scope of Mr O’Donoghue’s request, the Tribunal referred his request for documents on the Department’s files to the Department.[21]
[19] “FOI Act”
[20] “FOI Act request”.
[21] CB 478-479, 526 and 528.
On 15 December 2009 the Tribunal affirmed the Delegate’s Decision to refuse the applicant the grant of a Residence Visa. The Tribunal found that Mr O’Donoghue did not meet the requirements of cl.856.222 of Schedule 2 to the Migration Regulations because it was not satisfied that:
a)the position at Hope Lawyers was available to Mr O’Donoghue; or
b)that Mr O’Donoghue would be able to take up the position if it were available.[22]
[22] CB 504 and 515.
On 17 December 2009 the Tribunal advised Mr O’Donoghue of its decision to release in full the documents in its possession relevant to Mr O’Donoghue’s request.[23]
[23] Affidavit of Andrew Paterson sworn on 15 March 2010, para.4 and Annexure AP1 (“Mr Paterson’s Affidavit”).
Tribunal Decision
The Tribunal observed that in order to obtain a Residence Visa Mr O’Donoghue had to satisfy the requirements of cll.856.221 and 856.222 of Schedule 2 of the Migration Regulations.[24]
[24] CB 513.
The Tribunal found that Mr O’Donoghue had met the requirements of cl.856.221 of Schedule 2 of the Migration Regulations.[25] The Tribunal then turned to cl.856.222 of the Migration Regulations, the criteria for which are required to be met at the time of the decision. Clause 856.222 of the Migration Regulations provides as follows:
The Minister is satisfied that the appointment mentioned in paragraph 856.213 (a) will provide the employment referred to in the relevant employer nomination.
[25] CB 514.
Clause 856.213(a) of Schedule 2 of the Migration Regulations provides as follows:
856.213 The Applicant:
(a)has been nominated, in accordance with subregulation 5.19 (2) by an employer in respect of an appointment in the business of that employer;
The Tribunal found that:
a)the appointment referred to was that of legal consultant with Hope Lawyers; and
b)the position was no longer available to Mr O’Donoghue (as at December 2009 when being considered by the Tribunal) or that if it were available, Mr O’Donoghue would not be able to take up the position. The Tribunal relied upon evidence, including the following, that:
i)the only copy of an employment contract was one provided in November 2003, but undated and unsigned;[26]
ii)despite requests by the Tribunal, no further contract of employment had been provided to the Tribunal by Mr O’Donoghue, nor evidence of “bilateral contractual obligations” (asserted by Mr O’Donoghue) provided;[27]
iii)a written admission by Mr O’Donoghue that the delay in granting him a visa “‘…meant I could not continue with Hope Lawyers.’”[28]
iv)that in December 2004 Mr O’Donoghue travelled from Brisbane to Perth, where he was arrested two days after arrival, granted bail and required to reside in Perth which he did from 2004 to 2008, and during which time he had no working or other relationship with Hope Lawyers;[29]
v)Mr O’Donoghue’s subsequent detention in Hakea Prison, where he remained at the time of the Tribunal Decision;[30]
vi)Mr O’Donoghue’s oral evidence to the Tribunal that:
(A)he had no idea if Hope Lawyers still existed as a business;
(B)it would be unreasonable to expect Hope Lawyers to keep the position open for such a long time; and
(C)he had no evidence the position exists.[31]
[26] CB 514.
[27] CB 514.
[28] CB 515.
[29] CB 515.
[30] CB 515.
[31] CB 515.
The Tribunal therefore found that it was “not satisfied that the ‘appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination.’”[32] Therefore, the Tribunal was of the view that Mr O’Donoghue did not meet the requirements of cl.856.222.[33]
[32] CB 515.
[33] CB 515.
The Tribunal also referred to concerns raised by Mr O’Donoghue about documents allegedly not before, or provided to him by, the Tribunal, and which were not before the Delegate. The Tribunal had regard, however, to all the material that was before the Delegate. It also observed that the material on the Department’s files, as well as evidence from Mr O’Donoghue, both in writing and at the hearing, meant that it had sufficient information to enable it to reach the required degree of satisfaction in relation to the refusal of the Residence Visa.[34]
[34] CB 515-516.
At the hearing before the Tribunal, Mr O’Donoghue claimed that his case for review involved a wider issue about the Department acting wrongly in not granting the Residence Visa. Mr O’Donoghue made this claim on the basis that he had been advised by the Department that the grant of the Residence Visa would be on hold until court proceedings relating to his extradition were settled, and that matter aside, he had otherwise met all the requirements for the grant of the Residence Visa.[35] The Tribunal having reviewed the correspondence from the Department in relation to the above claim took the view that that advice by the Department was not unconditional. Further, the Tribunal held that it “does not have the legal capacity to waive mandatory criteria for this class of visa.”[36] Because those mandatory criteria under cl.856.222 of Schedule 2 of the Migration Regulations had not been met, the Tribunal therefore took the view that it had to affirm the Delegate’s Decision.[37]
[35] CB 516.
[36] CB 516.
[37] CB 517.
Application and final orders sought
The grounds of the Application are as follows:
1.The Second Respondent erred in law in finding, in effect, that it was irrelevant that the Applicant had satisfied all the requirements for the grant of an Employer Nomination (Residence) Class BW) visa and had been approved on 16 December 2003 and that the visa should have been granted then.
2.The Second Respondent failed to take into account a relevant matter, namely that the Applicant had satisfied all the requirements for the grant of an Employer Nomination (Residence) Class BW) visa and had been approved on 16 December 2003.
The final orders sought by Mr O’Donoghue are as follows:
1.An order setting aside the decision of the Migration Review Tribunal made on 15 December 2009.
2.An order setting aside the decision to refuse the Applicant the grant of an Employer Nomination (Residence) Class BW) visa.
3.An order directing the First Respondent to grant the Applicant an Employer Nomination (Residence) Class BW) visa.
Interim Application
In the Interim Application, Mr O’Donoghue seeks an adjournment of the Application. He applies for the following orders:
(1)An adjournment of this matter as set out in my Application made 01 February 2010 together with my letter dated 08 January 2010 addressed to the Honourable Federal Magistrates Court.
(3)That the grounds of this application be amended to include a claim of bias on the part of the First and Second named Respondents.
(4)That The Hon Kevin Rudd MP, Prime Minister, be joined as Third named Respondent taking responsibility for the acts and omissions of Senator Chris Evans, Minister for Immigration and Citizenship in like manner to taking full responsibility for the acts and omissions of The Hon Peter Garrett MP in the Home Insulation programme.
(5) An order for Discovery.
(6) Damages.
(7) Liberty to further amend this application.
(8) Liberty to Apply.
(9) Costs.[38]
[38] Transcribed without amendment: there is no proposed order (2).
The letter of 8 January 2010 referred to above is a letter written to the Registry of this Court on that date, prior to the filing of the Application.[39] The letter reads as follows:
I refer to the above.
Please note that I still await the determination of an application made by me under the Freedom of Information Act 1982 to the Migration Review Tribunal and the Department of Immigration and Citizenship. This Application was made by me on the 30 November 2009.
The purpose of this letter is to ask the Honourable Court not to proceed to determine this matter until such time as my Freedom of Information Act application has been adjudicated upon.
Please acknowledge receipt of this letter and confirm that my request is in order.
[39] The 8 January 2010 letter was referred to in, but not attached to, the Interim Application. The Court has however treated the letter as part of the Interim Application for relevant purposes.
Issues
The principal issues for determination in the Interim Application are whether:
a)the Application ought to be adjourned;
b)the Application ought to be amended;
c)the Prime Minister ought to be joined to the Application;
d)discovery ought to be ordered; and
e)further liberty to amend the Application, and liberty to apply generally, ought to be ordered.
Adjournment
General background
Mr O’Donoghue’s Application does not seek an adjournment of the proceedings. The affidavit filed on 11 January 2010 by Mr O’Donoghue[40] did inform the Court that he was being held in remand at Hakea Prison, pending the determination of extradition proceedings commenced against him by the Republic of Ireland, and that an application had been made by him to the High Court for special leave to appeal in those proceedings.[41] There is no dispute about those facts.
[40] “Mr O’Donoghue’s First Affidavit”.
[41] As to which see the decision of the Full Court of the Federal Court of Australia in O’Donoghue v Ireland & Anor (2009) 263 ALR 392; [2009] FCAFC 184 (“O’Donoghue”) dismissing an appeal against an earlier judgment of the Federal Court – O’Donoghue v Ireland [2009] FCA 618 – in which it was held that Mr O’Donoghue was eligible for surrender to Ireland under s.19(2) of the Extradition Act 1988 (Cth) (“Extradition Act”).
Affidavit in support of application for adjournment – 27 January 2010
Mr O’Donoghue filed a further affidavit on 27 January 2010,[42] prior to the first court date, said to be in support of an “application” for adjournment. There was however no formal application, interim or otherwise, for an adjournment before the Court as at 27 January 2010. Mr O’Donoghue further deposed that:
[42] “Mr O’Donoghue’s Second Affidavit”.
a)on 11 December 2009, he attempted to apply to the Department and the Tribunal for the release of documents under the FOI Act;
b)the documentation protected under the FOI Act concerned information relating to his wife, his four children, and his review application for a Residence Visa;
c)on 16 December 2009, he received a letter from the Tribunal regarding his request to access the documents, the letter stating that:
i)the statutory period for processing his request commenced on 14 December 2009;
ii)his request would be processed by a Tribunal officer; and
iii)he would be notified ‘as soon as practicable’ when this had occurred;
d)on 18 December 2009, he received a letter from the Department which stated that:
i)the documents he had requested ‘involve[s]…personal information about other people’ and as a result they were exempt from release unless he could obtain written consent from the parties in question authorising his access to them; and
ii)if he could not provide signed authorisation from the third parties then he would be required to send the Department a letter setting out the reasons why he should be allowed access to the documentation;
e)he requires access to the requested documents for the purpose of the proper preparation of the Application;
f)he is unaware of any third parties mentioned or concerned with the protected documentation, and as a result is unable to seek or furnish their consent, reaffirming his letter of 22 December 2009 to the Department to that effect;
g)he believed that the evidence contained in the protected documentation has probative value, which the Tribunal did not gain access to at the original hearing; and
h)he believes his inability to access all documentation pertaining to his situation has deprived him of this valuable evidence relevant to his case, and denied him a right to a fair hearing.
Submissions at first court date
Mr O’Donoghue indicated at the first court date on 1 February 2010 that he sought an adjournment of the Application, and said that:
a)on 7 November 2009 he made an application for discovery of all relevant documents from the Department and the Tribunal;
b)the Department did not fully disclose all documents to the Tribunal prior to its review of the Delegate’s Decision;[43]
c)as a consequence of the alleged failure of the Department to fully disclose all documents to the Tribunal prior to its review of the Delegate’s Decision, the matter was “not ready to proceed in any way, shape or form”;[44] and
d)he was seeking discovery of all relevant documents.
[43] Transcript 1 February 2010, pages 3-4.
[44] Transcript 1 February 2010, page 3.
Counsel for the Minister said that:
a)on 7 November 2009 Mr O’Donoghue made a request under s.362A of the Migration Act, for all written material that was before the Tribunal to be provided to him;
b)on 12 November 2009 the Tribunal released its Tribunal file and two Departmental files to Mr O’Donoghue in full, except for documents that were held to be non-disclosable pursuant to s.375A of the Migration Act, and in relation to which a certificate was issued by the Delegate;
c)on 11 December 2009 Mr O’Donoghue made a FOI Act request, the scope of which was clarified by a Tribunal officer on 14 December 2009;
d)that he had been instructed that the FOI Act request had been allocated to a case officer and it may take somewhere between two to four weeks to determine; and
e)if the Court considered it necessary to have a short adjournment that was not opposed, but otherwise the usual programming orders were sought.[45]
[45] Transcript 1 February 2010, pages 4-5.
First court date – orders
At the first court date the Court made the following orders:
1.The first respondent’s name be amended to “The Minister for Immigration and Citizenship”.
2.The first respondent shall file two copies and serve one copy of the Court Book on the applicant on or before 22 February 2010.
3.The matter be adjourned to a further directions hearing at 10:15am on 19 March 2010.
4.The applicant make any further application for adjournment of the hearing of this matter on or before 5 March 2010, supported by affidavit and a short outline of submissions.
5.If the applicant makes an application for adjournment of the hearing of this matter, that the first respondent file any affidavits in response and a short outline of submissions by 14 March 2010.
6.There be liberty to apply.
7.The costs of today be reserved.
Further affidavit in support of Interim Application for adjournment –
5 March 2010
Mr O’Donoghue lodged a further affidavit on 5 March 2010,[46] in support of the Interim Application for adjournment. Mr O’Donoghue relevantly deposed to seeking an adjournment of the proceedings:
a)to a date after the Department and the Tribunal had complied with the FOI Act request;
b)because the Department and Tribunal had failed, refused and neglected to make full, frank and honest disclosure;
c)because the Tribunal had demonstrated bias in favour of the Department, and in particular had further demonstrated bias by alleging that Mr O’Donoghue’s job application lacked bona fides when it knew or ought to have known that that allegation was erroneous and false;
d)that the Department undertook to await the outcome of court proceedings before the final issue of his Residence Visa, although it was approved, and that the Department’s undertaking binds this Court;
e)because a Notice of Receipt of Extradition Request under s.16 of the Extradition Act “signed by the Hon Phillip Ruddock MP post dated the alleged Extradition Request referred to in email between Attorney-Generals (sic) Office, Richie Holland and the Department … which document was not in the possession of the … [T]ribunal”;[47] and
f)because he believes that Centrelink denied Commonwealth benefits to him and his family because of the conduct of the Department.
[46] “Mr O’Donoghue’s Third Affidavit”.
[47] Mr O’Donoghue’s Third Affidavit, para.10. It is not precisely clear which documents referred to in the passage quoted were not before the Tribunal, but for reasons set out below: see para.53(d)(ii) below, it is immaterial.
An affidavit in opposition to the Interim Application for adjournment
Mr Paterson’s Affidavit was sworn in opposition to the application for an adjournment. Mr Paterson is a Legal Officer in the Litigation and Opinions Branch of the Department, and has conduct of the matter on the Department’s behalf.[48] Mr Paterson’s Affidavit provides as follows:
[48] Mr Paterson’s Affidavit, para.1.
a)in response to Mr O’Donoghue’s request made to the Tribunal under the FOI Act dated 11 December 2009[49] the Tribunal decided, on 17 December 2009, to release in full all relevant documents in its possession to Mr O’Donoghue;[50]
b)Mr O’Donoghue’s request for documents on the Department’s files was referred by the Tribunal to the Department, and on 5 March 2010 the Department decided to partially release all relevant documents in its possession to Mr O’Donoghue.[51] The effect of that decision is set out as follows in Mr Paterson’s Affidavit:
[49] A copy of which appears at CB 478-479.
[50] Mr Paterson’s Affidavit, paras.3 and 4 and Annexure AP1.
[51] Mr Paterson’s Affidavit, para.5 and Annexure AP2.
6.As appears from the decision record, the Department released the whole of the Department’s file CLF2005/4528, save for folios 27-87, 183-189 and 210 (for which full exemption was claimed) and folios 211 and 217 (for which part exemption was claimed) and the whole of the Department’s file CLF2009/111874.
7.I have perused the folios from the Department’s file CLF2005/4528 which were not released in full to the applicant and say as follows:
7.1 folios 27-87 are included in the Court Book at pages 16-77; and
7.2 the remaining folios 183-189, 210-211 and 217 are not relevant to the Tribunal’s decision or the applicant’s application for review.[52]
[52] Mr Paterson’s Affidavit, paras.6 and 7.
The decision on Mr O’Donoghue’s FOI Act request of 14 December 2009 is attached to Mr Paterson’s Affidavit.[53]
[53] Mr Paterson’s Affidavit, Annexure AP2 (“FOI Decision Record”).
The FOI Decision Record shows that:
a)folios 183-188 were fully exempted under s.33(b) of the FOI Act because they contained:
…information which, if disclosed would reveal information or matter communicated to the Commonwealth in confidence by a foreign government or by an agency of another government. The information was supplied to the department on an expectation that it would remain confidential.
I believe disclosure of this information could lessening (sic) trust and confidence between agencies and could reasonably damage the relationship between the department and other governments and international organisations. Such a result could affect the flow of confidential information between the department and other governments and international organisations.[54]
b)folios 189, 210, 211 and 217 were exempted or partially exempted because they contained:
… information which, if disclosed would reveal lawful methods or procedures used by the department to investigate breaches of the law and would be reasonably likely to prejudice the effectiveness of those methods or procedures.
I believe disclosure of this information could reasonably compromise the department’s investigation strategy by revealing the department’s methods of investigation and in doing so would compromise the department’s ability to successfully utilise such methods or procedures in the future.[55]
[54] FOI Decision Record, page 2.
[55] FOI Decision Record, pages 2-3.
Submissions relating to Interim Application for adjournment
In written “Preliminary Summary of Submissions” dated 5 March 2010, Mr O’Donoghue submitted as follows:
(1)My Permanent Residency Visa and that of my Family has been revoked contrary to Law.
(2)Three of my Four children were born in Australia.
(3)I say that such revocation has resulted from wrongful acts and omissions on the part of Government Departments.
(4)The subject matters affecting my Permanent Residency Visa arose in Dublin and Belfast in 1998.
(5)It is alleged that I obtained some $60,000.00. (Sixty Thousand Dollars) by false pretences or otherwise.
(6)It is acknowledged that I did not in fact receive the above mentioned money but rather a Third party.
(7)It is said that I took responsibility for the acts of that Third Party at some unspecified date after the event.
(8)I believe that this notion is not known to the Common Law or to Statute and defies the principles known as Mens Rea and Actus Reus.
(9)The monies were was a deposit on Real Estate and as such a matter of Contract Law and not Criminal Law.
(10)This is a very complex matter which requires very close Legal and Judicial scrutiny.
(11)This Honourable Court require full frank and Honest disclosure in order to ensure that Justice is not only seen to be done but is in fact done.
(12)I disagree with what His Honour Federal Magistrate LUCEV said at my Case Conference on 01 February 2010 in regards to the possible irrelevance of documents discovered under the Freedom of Information Act 1982.
(13)The Migration Review Tribunal has a Statutory Duty to furnish me with all documents.
(14)The Migration Review Tribunal therefore has a duty to obtain all documents from the Department of Immigration and Citizenship.
(15)Natural Justice, Due Process and Fair Procedure require full frank and candid disclosure.
(16)In December 2003, the Department of Immigration and Citizenship declined to finalise my Permanent Residency in the mistaken belief that there were pending charges against me in Dublin.
(17)The warrants in fact did not issue until March 2004.
(18)Some of the supporting documents did not exist until August 2005.[56]
[56] Transcribed from original without amendment.
Mr O’Donoghue’s arguments at hearing reflected the above submissions, but focussed principally on the alleged failure of the Tribunal (and the Department) to disclose all necessary documents.
Additionally, at hearing, Mr O’Donoghue told the Court that:
a)he had sought an internal review of the Department’s decision in response to the FOI Act request, stating that he was very suspect of the documents furnished to him by the Department as not being candid, frank or bona fide. Mr O’Donoghue argued that to that extent his FOI Act request has not been concluded;[57] and
b)he was awaiting confirmation of the hearing date for his special leave application to the High Court, which relates to his extradition proceedings. The special leave application itself is not in evidence before the Court.
[57] Transcript 19 March 2010, page 4.
Counsel for the first respondent provided written submissions which can be summarised as follows:
a)the Department and Tribunal both made decisions in response to Mr O’Donoghue’s request under the FOI Act, for access to documents dated 11 December 2009;
b)Mr O’Donoghue received the Court Book which contains the relevant documents from the files of the Department and the Tribunal; and
c)the grounds on which Mr O’Donoghue seeks an adjournment therefore no longer exist and there is no good reason to defer the hearing of the Application.
The Court also notes the following submissions made in relation to discovery by the Minister:
a)Mr O’Donoghue has made requests for and been provided with copies of all disclosable documents from the Departmental and Tribunal files in relation to this matter;
b)Mr O’Donoghue has also received a copy of the Court Book which contains the relevant documents from the files of the Department and the Tribunal for the hearing of his application for review;
c)the only documents which were before the Tribunal which have not been provided to Mr O’Donoghue are 10 folios from one of the Department’s file. Those folios were the subject of a certificate to the Tribunal under s.375A of the Migration Act and were also considered exempt from production under the FOI Act on the grounds that they were documents affecting information communicated in confidence to the Commonwealth by a foreign government or international organisation or were documents affecting prejudice to law enforcement methods and procedures. They have not been included in the Court Book on the grounds that they are not relevant to the applicant’s review of the Tribunal Decision;
d)the issue before the Tribunal was a narrow one: namely whether Mr O’Donoghue was able to be employed as a legal consultant by Hope Lawyers and met the requirements of cl.856.222 of Schedule 2 of the Migration Regulations; and
e)the documents that Mr O’Donoghue seeks disclosure of are irrelevant to any review of the Tribunal’s decision.
Consideration of Interim Application for adjournment
Principles
The Court has discretion whether or not to allow an application to adjourn proceedings. In exercising this discretion, the Court must take into account the objects and purposes of the Federal Magistrates Act 1999 (Cth)[58] and the Federal Magistrates Court Rules 2001 (Cth),[59] which have been previously described by this Court as follows:
[58] “FM Act”.
[59] “FMC Rules”.
21.Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.[60]
[60] Goodall v Nationwide News Pty Limited [2007] FMCA 218 at para.21 per Lucev FM.
Further, the Court must take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[61]
[61] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
This Court’s objects and purposes reflect much of the modern approach to case management, particularly of interim or procedural applications, especially recognising the need for proceedings to be resolved justly, whilst placing emphasis on the need for efficiency, economy and the avoidance of delay and expense.
Documents
Mr O’Donoghue argues that the matter ought to be adjourned pending the provision of documents he has requested from the Department and the Tribunal, by a request under the FOI Act. This requires the Court to examine:
a)what documents Mr O’Donoghue has received; and
b)the relevance of documents received, and those not received, to the Application.
The evidence establishes that Mr O’Donoghue has been provided with:
a)all documents that were:
i)before the Tribunal for the purposes of the making of the Tribunal Decision; and
ii)on the Department’s files, save for ten excluded folios from the Department’s files;
b)a Court Book containing documents from the Department and Tribunal relevant to the hearing of the review application before the Tribunal.
On the evidence, Mr O’Donoghue has therefore received all the documents requested by him, except those the subject of a certificate under s.375A of the Migration Act and those exempted under the provisions of ss.33(b) and 37(2)(b) of the FOI Act. These ten excluded folios deal with:
a)information communicated in confidence to the Commonwealth by a foreign government or Minister; and
b)matters affecting prejudice to law enforcement methods and procedures.[62]
[62] Mr Paterson’s Affidavit, Annexure AP2.
The question which arises is whether these ten excluded folios are relevant to the Application.
The only basis on which the Tribunal rejected Mr O’Donoghue’s review application was Mr O’Donoghue’s inability to meet the requirements of cl.856.222 of Schedule 2 of the Migration Regulations, namely that his appointment at Hope Lawyers would have provided employment to him at the time of the Tribunal Decision. The Tribunal Decision that Mr O’Donoghue did not satisfy those requirements was based on:
a)an absence of written evidence of available employment (and the Court notes that that is evidence that only Mr O’Donoghue or Hope Lawyers could have supplied); and
b)Mr O’Donoghue’s oral evidence in which he effectively admitted that the employment was not available, or, at least, that he did not know if it was still available.
In the circumstances, those conclusions appear to have been manifestly open to the Tribunal on the evidence. Furthermore, it is not possible on the evidence to see how the ten excluded folios relate in any way to the determination of the availability of the employment for Mr O’Donoghue at Hope Lawyers. There is no obvious, rational or other apparent connection between matters relating to an in-confidence communication to the Commonwealth by a foreign government and law enforcement methods and procedures, and the relevant subject matter of cl.856.222 of Schedule 2 of the Migration Regulations in this case, namely, the availability of the employment at Hope Lawyers for Mr O’Donoghue.
In the Court’s view the ten excluded folios are documents which are not relevant to the issues arising under cl.856.222 of Schedule 2 of the Migration Regulations, and therefore are not relevant to this Court’s role in reviewing the Tribunal Decision. The failure of the Department or the Tribunal to provide those documents to Mr O’Donoghue, does not constitute a basis for adjournment of the Application.
In the Court’s view, there is no basis to adjourn the Application as Mr O’Donoghue has been provided with all relevantly disclosable documents.
High Court special leave application – extradition proceedings
In O’Donoghue the Full Court of the Federal Court found that on a fair reading of the materials supplied in support of the extradition application:
a)there was a proper foundation to infer knowledge in each instance that the presentation of cheques at a bank and the cashing of those cheques for Mr O’Donoghue’s own personal use, or for payment of a newspaper account of a business being operated by Mr O’Donoghue, were beyond and inconsistent with the purpose for which directions were given in each instance by the customers of the business, and that the elements of the offence of conversion constituted stealing as provided for in s.378 of the Criminal Code (WA) were therefore made out; and
b)that Mr O’Donoghue was directly involved in certain false representations, and not only did he know the representations were made but also knew them to be false, and that was sufficient to establish the necessary elements for the purposes of an offence under s.409 of the Criminal Code (WA), namely, intent to defraud by deceit or fraudulent means.[63]
[63] O’Donoghue ALR at 408 and 410 per Finn, Gilmour and McKerracher JJ; FCAFC at paras.66 and 78 per Finn, Gilmour and McKerracher JJ.
The subject matter of the extradition proceedings do not bear directly upon the subject matter of the grounds of the Application presently before this Court. The question of whether or not the employment at Hope Lawyers is still available to Mr O’Donoghue is one of fact to be determined, as it was, by the Tribunal at the time of the Tribunal Decision. The question of whether the Tribunal made any jurisdictional error in what appears to have been a relatively straightforward finding of fact based, in large part, on evidence given by Mr O’Donoghue himself is not affected by, or related to, the question of whether or not the supporting documents provided in the extradition proceedings provide a foundation for Mr O’Donoghue’s extradition by reason of the fact that they disclose conduct which may have constituted an offence in Western Australia under the Criminal Code (WA).
Therefore, the decision of the High Court on the special leave application will not impact upon the Application. If special leave is granted, and ultimately Mr O’Donoghue’s application to the High Court is successful, the Application will still need to be determined, and no good purpose would be served, having regard to the disparate subject matters involved, by delaying the hearing of the Application pending the outcome of the special leave application to the High Court, and any resultant hearing if the special leave application is successful. Alternatively, if special leave is granted and the application to the High Court is ultimately unsuccessful, or, if special leave is not granted, then Mr O’Donoghue will, in all likelihood, be extradited to Ireland. Again, given the disparate subject matter involved in the extradition proceedings and in this Application, there is no reason to adjourn the Application on account of the extradition proceedings. Even if Mr O’Donoghue were to be extradited to Ireland whilst the Application was on foot, and assuming the Application was otherwise not otiose, there is no reason, given modern means of hearing Court applications, why the Application could not continue to be heard in this Court even if he were in Ireland.[64]
[64] Gamage v Minister for Immigration & Ors (No. 2) [2009] FMCA 1146 at para.22 per Lucev FM (“… modern means of communication might allow him to appear from Sri Lanka to the High Court by phone or video link”), upheld in refusing leave to appeal: see Gamage v Minister for Immigration and Citizenship (2009) 112 ALD 449 at 466 per McKerracher J; [2009] FCA 1373 at para.99 per McKerracher J (“Gamage – Federal Court”). An application for special leave to appeal from Gamage – Federal Court was dismissed in the High Court of Australia: Gamage, In the matter of a proposed application [2009] HCATrans 309.
There was no evidence before the Court as to the scheduling of the special leave application, and no information beyond the undisputed fact that the special leave application has been filed and a hearing date is awaited. From that limited information it is reasonable for the Court to assume that the matter is many months from hearing. There is no evidence that preparation for, or of, the special leave application is pressing. Further, because of the making of the Interim Application the progress of this Application has been slower than normal for an application for judicial review of a decision of the Tribunal. In the ordinary course in the Perth Registry list, the Application would already have been heard. Given the directions which are to be made in this matter by reason of the Interim Application there will be further delay whilst other procedural steps are taken, and it is probably unlikely that the Application will be heard until well into the second half of this year. In those circumstances, an adjournment on the basis that Mr O’Donoghue needs time to prepare as a consequence of his being involved in, and running personally, the special leave application and this Application, loses much of its force. Even taking into account the fact that Mr O’Donoghue is in prison, there is no sufficient evidence, and insufficient reason otherwise, for the Court to conclude that Mr O’Donoghue will not be able to sufficiently prepare both applications in the time available.
In the Court’s view, the High Court special leave application in relation to the extradition proceedings provides no basis for the adjournment of the Application.
Other matters
In relation to other matters raised by Mr O’Donoghue:
a)the issue of whether or not his Residence Visa has “been revoked contrary to Law” will, at least so far as it relates to whether or not the Tribunal committed jurisdictional error on the review application, be a matter to be determined in the substantive hearing of the Application, and is therefore no reason to adjourn the Application;
b)the fact that three of Mr O’Donoghue’s four children were born in Australia does not provide any reason to adjourn the hearing of the Application, and none were in fact advanced;
c)whether the alleged “revocation” of Mr O’Donoghue’s Residence Visa “has resulted from wrongful acts and omissions on the part of Government Departments” is not a reviewable ground alleging jurisdictional error in the Tribunal Decision. Further, if wrongful acts and omissions over and above those said to constitute jurisdictional error are alleged it is not apparent that they are presently grounds of the Application (and presumably grounds which would have to arise under the Court’s statutory associated jurisdiction);[65]
d)i) as to paragraphs (4) to (9) and (16) to (18) of the submissions made in the “Preliminary Summary of Submissions” those are matters which appear to be relevant to the extradition proceedings presently the subject of the special leave application to the High Court, and not to the question of whether the Tribunal committed jurisdictional error, and are therefore not a reason to adjourn the Application;
ii)likewise, the fact that a formal document such as a Notice of Receipt of Extradition Request or associated documents[66] were not before the Tribunal does not obviously bear upon the question of compliance with the requirements of cl.856.222 of Schedule 2 of the Migration Regulations, and is therefore not a reason to adjourn the Application;
e)the assertion that this “is a very complex matter which requires a very close Legal and Judicial scrutiny” is not of itself a basis on which to adjourn the Application. However, it should be noted that on the basis of the Application as it presently stands, the issue confronting this Court is a relatively straightforward one, namely, whether or not there was jurisdictional error on the part of the Tribunal in making the Tribunal Decision that Mr O’Donoghue did not meet the requirements for issuance of a Residence Visa under cl.856.222 of Schedule 2 of the Migration Regulations;
f)whether or not the Tribunal demonstrated bias in favour of the Department is a matter of substance for final hearing, assuming it to be a ground under the Application, which presently does not appear to be the case. Further, allegations of bias are better resolved sooner rather than later. In the circumstances the allegation of bias does not support an adjournment of the Application;
g)whether or not the Department undertook to await the outcome of court proceedings before finally dealing with Mr O’Donoghue’s Residence Visa, and the extent to which that might constitute jurisdictional error, if at all, are again matters of substance for the hearing of the Application, and not matters which support an adjournment. Indeed, the Application having been made, the objects and purposes of the FM Act and FMC Rules, together with modern principles of case management, necessitate this matter being heard sooner rather than later; and
h)the question of whether or not Mr O’Donoghue and his family had been denied Centrelink benefits by reason of the conduct of the Department appears to have no relevance whatsoever to the question of whether or not the Tribunal committed jurisdictional error in affirming the Delegate’s Decision to refuse Mr O’Donoghue a Residence Visa, and cannot constitute a basis for adjournment of the Application.[67]
[65] FM Act, s.18. As to the statutory associated jurisdiction of this Court, see Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281 at paras.13-29 per Lucev FM (“Allblend Holdings”).
[66] See para.28(e) and footnote 47 above.
[67] If there is a right to challenge the decisions made by Centrelink in relation to benefits afforded, or not afforded, to Mr O’Donoghue and his family then the correct mechanism is most likely an appeal to the Social Security Appeal Tribunal, and subsequently the Administrative Appeals Tribunal, there being no private right to claim damages in relation to denied benefits or administrative decisions of Centrelink. See generally Pickering v Centrelink [2008] FCA 561 and Fazio v Centrelink (No. 2) [2008] FMCA 1389 and the cases referred to in both of those matters.
Adjournment – conclusion
For the reasons set out above the Interim Application fails insofar as it seeks to adjourn the hearing of the Application.
Amendment of substantive application
Bias
Mr O’Donoghue seeks leave to amend his application to raise a ground of bias on behalf of the respondents. In Mr O’Donoghue’s Third Affidavit, he relevantly deposes to the following in support of this ground:
a)the Tribunal deliberated and decided upon his matter in the absence of full disclosure and in deliberate disregard to his pending FOI Act request, and in doing so demonstrated bias in favour of the Department; and
b)the Tribunal demonstrated further bias by alleging that his job application lacked bona fides when it knew or ought to have known that such an allegation was erroneous and false.
Because:
a)the Minister has no objection to the applicant being granted leave to amend the Application to raise the ground of bias;
b)the proceedings have not advanced beyond the stage of provision of the Court Book; and
c)bias is a fundamental issue which, if established, may establish jurisdictional error by the decision-maker,[68]
leave to amend the Application to raise the ground of bias will be granted.
[68] Minister for Immigration and Multicultural Affairs v Jia Legeng & Anor (2001) 205 CLR 507 at 537-538 and 540 per Gleeson CJ and Gummow J; [2001] HCA 17 at paras.95, 105 and 106 per Gleeson CJ and Gummow J (with whom Hayne J agreed: CLR at 561; HCA at para.176); CLR at 559 per Kirby J; HCA at para.167 per Kirby J.
Undertakings and estoppel
In the course of the hearing Mr O’Donoghue made reference to what he asserted were undertakings by the Department not to deal with his Residence Visa application pending the outcome of the extradition proceedings. In essence, Mr O’Donoghue says that the alleged undertakings have not been complied with by the Department. Mr O’Donoghue asserts that the undertakings bind not only the Department, but this Court, and further give rise to an estoppel in relation to the further consideration of his Residence Visa whilst the extradition proceedings are on foot. There also appears to be an alternative argument that the Residence Visa has, in fact, been approved by the Department. In any event, Mr O’Donoghue seeks to amend the Application to deal with the alleged undertakings and estoppel. That course is not opposed by the Minister, although it was noted, correctly, that the Application can only deal with the Tribunal Decision (and whether or not that Tribunal Decision is affected by jurisdictional error) and not decisions made by the Department. The Court’s powers to undertake judicial review are limited to decisions of the Tribunal. The Court may remit a matter back to the Tribunal for reconsideration of a prior decision relating to the grant, refusal or cancelation of a visa when jurisdictional error is shown on the part of the decision-maker.[69]
[69] Migration Act, s.476.
No undertaking given by the Department can bind the Court. However, the issue here appears to be whether the Tribunal was estopped from further consideration of the Residence Visa, and in particular making a decision to refuse the Residence Visa, and if the Tribunal was estopped (for some reason) then whether that might arguably give rise to jurisdictional error. The Court recognises that estoppel is a rarely used vehicle in Australian administrative law, but there are possible applications which cannot be excluded, and Mr O’Donoghue ought not be denied an opportunity to make out a case on this basis.[70]
[70] See generally the discussion, including examination of relevant cases on estoppel arising from undertakings regarding the future exercise of administrative power in M. Head, Administrative Law. Context and Critique (2nd Edn) (Sydney: Federation Press, 2008), Ch. 13.
In those circumstances, and given that the Minister has no objection to the grant of leave to amend the Application to raise these matters, and given the stage that the proceedings have reached, leave to amend the Application to raise estoppel on the basis of alleged undertakings will be granted.
Joinder of Prime Minister
Submissions
In support of that part of the Interim Application seeking to join the Prime Minister as a respondent in the Application, Mr O’Donoghue submitted that because the Prime Minister:
a)has publicly expressed his concern as to the fairness of a trial held in relation to an Australian citizen’s case being heard in China; and
b)has taken responsibility for the Minister for the Environment in relation to the home insulation matter,
then the Prime Minister can take responsibility for the Minister in what has followed from what he considers an erroneous and illegal termination of his Residence Visa, which he says was designed to thwart any effort he or his family might have to claim Centrelink benefits.[71] In Mr O’Donoghue’s Third Affidavit he deposed that Centrelink had denied Commonwealth benefits to him and his family because of the acts or omissions of the Department.
[71] Transcript 19 March 2010, page 7.
Mr O’Donoghue further submitted that the Prime Minister could be joined as a party by virtue of the fact that the Prime Minister is a Commonwealth officer.[72]
[72] Transcript 19 March 2010, pages 8-9; Constitution, s.75(v).
The first respondent submits that the correct parties to the application are the ones already named.[73] Further, that the Prime Minister has no “interest” in the proceeding, as Prime Ministerial responsibility for Ministers of government, let alone delegates of Ministers, does not provide any proper basis to join the Prime Minister as a respondent to the action.
[73] Citing Migration Act, s.479 and SAAP v Minister for Immigration and Citizenship (2005) 228 CLR 294; [2005] HCA 24 (“SAAP”).
Consideration – joinder of Prime Minister
Section 479 of the Migration Act provides as follows:
The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary, and:
(a)if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or
(b)in any other case—the person who is the subject of the migration decision; or
(c)in any case—a person prescribed by the regulations.
The reference to applications under s.477 of the Migration Act is a reference to an application to this Court under s.476 of the Migration Act.[74]
[74] Migration Act, s.477(1).
In SAAP, the High Court held that the relevant Tribunal[75] ought to be joined as a party to an application for judicial review and the issuance of constitutional writs. McHugh J held that:
a)the relevant Tribunal was the relevant officer of the Commonwealth for the purposes of the application (which was for the issuance of constitutional writs under s.75(v) of the Constitution); and
b)it was therefore necessary for the relevant Tribunal to be joined.[76]
[75] In that case the Refugee Review Tribunal.
[76] SAAP CLR at 310 per McHugh J; HCA at para.43 per McHugh J.
In SAAP it was said that:
It was suggested in argument that the joinder of the RRT would be unnecessary and, indeed, that the RRT was neither a necessary nor a proper party in a s 39B application. The reason given was that a combination of ss 477 and 479 of the Act relieved the RRT from the tedium of entering submitting appearances, not only to judicial review applications under the Act (grounded in ss 76(ii) and 77(i) of the Constitution as matters arising under the Act), but also to applications under s 39B of the Judiciary Act for constitutional writs. Subject to the qualifications expressed therein, s 39B "vests in the Federal Court the entirety of the jurisdiction which s 75(v) confers on the High Court”. That particular head of federal jurisdiction is attracted by the seeking of a particular remedy against a federal officeholder. Remedy and identity of party are thus critical. Sections 477 and 479 of the Act, read together, accept that s 39B still operates with respect to constitutional writ applications; to deny the necessity for the presence of the RRT on the record would be to withdraw that element which gives the proceeding for constitutional writs the character of a Ch III “matter”.[77]
[77] SAAP CLR at 324-325 per Gummow J; HCA at para.91 per Gummow J (with whom Kirby J CLR at 341; HCA at para.153; and Hayne J CLR at 347; HCA at para.180, agreed).
It is therefore readily apparent that the Minister and the Tribunal are proper parties to an application for judicial review and the issuance of constitutional writs in this Court, which in relation to migration decisions, exercises the original jurisdiction of the High Court.[78]
[78] Migration Act, s.476.
Mr O’Donoghue seeks to have the Prime Minister joined as a party to the Application. The office of Prime Minister is not mentioned in the Constitution. The executive power of the Commonwealth is vested in the Queen. That power is exercisable by the Governor-General as the Queen’s representative, extending to the execution and maintenance of the Constitution and to the laws of the Commonwealth.[79] A Federal Executive Council advises the Governor-General.[80] Ministers of State are appointed by the Governor-General “to administer such departments of State of the Commonwealth as the Governor-General … may establish”.[81] Those Ministers are members of the Federal Executive Council and the “Queen’s Ministers of State for the Commonwealth”.[82]
[79] Constitution, s.61.
[80] Constitution, s.62.
[81] Constitution, s.64.
[82] Constitution, s.64.
Thus, the office of Prime Minister has no express constitutional basis. It is an office which has evolved by convention to be that of Chief Minister and Chief Advisor amongst the ministers to the Governor-General and as such is the head of government and leader of the executive government.[83]
[83] G. Moens & J. Trone, Lumb & Moens’ The Constitution of the Commonwealth of Australia Annotated (7th Edn) (Chatswood: LexisNexis Butterworths, 2007), p.254.
In this case, the Prime Minister has no formal role, constitutionally, legislatively or otherwise. There is no evidence that the Prime Minister has had any involvement in the migration decision that Mr O’Donoghue seeks to have this Court review. No breach of statutory duty by the Prime Minister is suggested or apparent in the material before the Court.[84] Nor could there be: the Prime Minister has no power to grant or refuse a visa.[85] Therefore, no remedy can issue against the Prime Minister. Additionally, the bases upon which Mr O’Donoghue has sought to support his application to join the Prime Minister as a party to this matter lack any legal justification. The Prime Minister’s public views about the trial of Australian citizens in China and the responsibility of the Minister for Environment in relation to the home insulation matter are not reflective of any constitutional or legal responsibility for the matters adverted to by Mr O’Donoghue in support of this part of his Interim Application.
[84] Scott v Pedler (2002) 70 ALD 21 at 25 per Gray J; [2002] FCA 851 at para.18 per Gray J.
[85] Desai & Ors v Keelty & Ors (2009) 180 FCR 559 at 567 per Tracey J; [2009] FCA 1280 at para.41 per Tracey J.
Given:
a)that under s.479 of the Migration Act the proper parties to the Application are the Minister and the Tribunal; and
b)the absence of any constitutional, legal, or other proper foundation for joinder of the Prime Minister as a party to the Application,
the Interim Application to join the Prime Minister as a respondent to the Application must be dismissed.
Discovery
Submissions re discovery
Mr O’Donoghue’s submissions in support of his application for discovery were essentially those set out above.[86]
[86] See paras.25 and 32 above.
The Minister, in opposition to an order for discovery being made, submitted that:
a)discovery is not allowed in relation to a proceeding unless the Court declares that it is appropriate in the interests of the administration of justice;[87]
b)there is a rebuttable presumption that discovery will not be permitted in proceedings in this Court;[88] and
c)it is not in the interests of the administration of justice that an order be made for either general or specific discovery for the following reasons:
i)because Mr O’Donoghue had been provided with copies of all disclosable documents from the Departmental and Tribunal files in relation to the matter;
ii)Mr O’Donoghue had also received a copy of the Court Book containing relevant documents from the Departmental and Tribunal files for the purposes of the hearing of his application for review;
iii)the only documents not disclosed were the ten excluded folios from the Department’s files which were the subject of a certificate under s.375A of the Migration Act, were exempted from production under the FOI Act, and which because of their nature were not relevant in any event to the Tribunal’s consideration of the review application by Mr O’Donoghue; and
iv)because the issue before the Tribunal was a narrow one, most of the documents sought by Mr O’Donoghue were irrelevant to any review of the Tribunal Decision.
[87] FM Act, s.45.
[88] NAQR v Minister for Immigration (No. 1) [2002] FMCA 271 at para.5 per Driver FM.
Principles re discovery in this Court
In Doukidis v Williamson[89] this Court said:
[89] (2008) 6 ABC(NS) 717; [2008] FMCA 1352 (“Doukidis”).
36.The requirements for discovery in this Court have been set out in Abrahams v Qantas Airways Limited:
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and in doing so the Court “must have regard to” whether discovery “will be likely to contribute to the fair and expeditious conduct of the proceeding” and such other matters as the Court considers relevant. [90]
[90] (2007) 210 FLR 314 at 317 per Lucev FM; [2007] FMCA 639 at para.11 per Lucev FM (“Abrahams”).
…
In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a) the relevance of any documents sought to be discovered;
(b) the volume of documents sought to be discovered;
(c) whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)whether discovery would narrow the issues;
(e)whether both parties seek discovery;
(f)whether there is consent to discovery;
(g)whether discovery is “of benefit” in the litigation; and
(h)the effect of discovery on litigants, especially, vulnerable litigants.[91]
The Court further noted:
The categories of relevant factors are not closed.[92]
37.The Court also observes that in the context of this particular case other factors which might be relevant to the issue of discovery include the conduct of the party requesting discovery in relation to the litigation, as well as the extent to which discovery might already have been made, by reason of affidavits already filed, which affidavits were, by order, required to attach relevant documents….[93]
[91] Abrahams FLR at 321 per Lucev FM; FMCA at para.25 per Lucev FM.
[92] Abrahams FLR at 321 per Lucev FM; FMCA at para.26 per Lucev FM. See also Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd (No. 2) [2008] FMCA 690, where similar principles are discussed.
[93] Doukidis ABC(NS) at 725-726 per Lucev FM; FMCA at paras.36-37 per Lucev FM. The preceding three footnotes are footnotes from the judgment in Doukidis.
Consideration – discovery
For reasons set out above,[94] all relevant documents have been discovered or disclosed to Mr O’Donoghue in these proceedings, apart from the ten excluded folios on the Department’s files. For further reasons set out above,[95] those ten excluded folios are not relevant to these proceedings for review of the Tribunal Decision. Furthermore, there is a Court Book which contains most, if not all, of the relevant documents. In the circumstances, discovery will not narrow the issues in these proceedings, the relevant issue being in any event a relatively narrow and straightforward one.[96] Thus, discovery will be of no benefit at all to this litigation. In the circumstances it is not necessary to order discovery in this matter, and further discovery, or lack of discovery, is not a basis on which the proceedings ought to be adjourned.
[94] See paras.40-47 above.
[95] See paras.43-47 above.
[96] See para.44 above.
Because all relevant documents have been discovered it cannot be in the interests of the management of justice – that is the management by the Court of the proceedings pending before the Court – for a declaration to issue that discovery is in the interests of the administration of justice. Such a declaration would not contribute to the fair and expeditious conduct of the proceedings, it being a declaration which, on the evidence, would have no effect because all relevant documents have been discovered. These ten excluded folios are not discoverable by reason of the existence of a s.375A certificate under the Migration Act and their being exempted under the FOI Act for reasons which make it clear that they are not relevant to the subject matter of these proceedings. Thus the claim for an order for discovery in the Interim Application must be dismissed.
Damages
The Interim Application seeks an order for “Damages”. It is not apparent what the order for damages relates to, and the matter was not elucidated at hearing by Mr O’Donoghue. The Minister submitted that there could be no order for damages in relation to the Application because there was no cause of action capable of giving rise to damages presently before the Court.
The Application is an application for review of the Tribunal Decision. The remedy if the Application is upheld is for the issuance of appropriate constitutional writs and the remittal of the matter to the Tribunal for further consideration. If the Application fails then it will be dismissed. There is no cause of action (such as negligence or misfeasance in public office) giving rise to damages, assuming that a relevant cause of action could be brought in the Court’s statutory accrued jurisdiction.[97] Therefore, the claim for an order for damages in the Interim Application must be dismissed.
[97] FM Act, s.18. As to the statutory associated jurisdiction see Allblend Holdings at paras.13-29 per Lucev FM.
Procedural orders – liberty to further amend the Application and liberty to apply
The Interim Application seeks orders for liberty to apply to further amend the Interim Application and liberty to apply generally. Orders in those terms are unnecessary. This judgment disposes of the Interim Application, and otherwise an interim application can be brought at any time by any party and the Court will consider that interim application on its merits.
There will therefore be an order dismissing the Interim Application insofar as it seeks orders for liberty to further amend the Interim Application and liberty to apply generally.
Referral to another Federal Magistrate
The Court, as presently constituted, has had to deal with the meaning and application of cl.856.222 of Schedule 2 of the Migration Regulations in the course of determining this matter. Because of the conclusions reached with respect to cl.856.222, a reasonably objective observer might conclude that the Court as presently constituted had reached a conclusion about the substantive merit of the Application and about the meaning and application of cl.856.222, which would preclude the Court as presently constituted from dealing objectively with the merit of the Application at hearing. In order to preclude any suggestion of bias on the part of the Court, the Court will order that the matter be transferred to the docket of Federal Magistrate Raphael, and that the matter be adjourned to a directions hearing before Federal Magistrate Raphael on a date to be fixed. That course of action will obviate any suggestion of bias on the part of the Court in determining the matter.
Conclusion and orders
The Court has concluded that the Interim Application ought to be dismissed insofar as it:
a)applies to adjourn this matter;
b)applies to join the Prime Minister as a party to this matter;
c)applies for discovery in this matter;
d)seeks an order for damages;
e)seeks orders for:
i)liberty to further amend this application; and
ii)liberty to apply generally.
The Interim Application will be allowed insofar as it applies to amend the Application to raise:
a)alleged bias; and
b)estoppel arising from alleged undertakings.
The Court will order that the applicant have leave to file a further amended application – limited to those matters – by 21 June 2010 and that the respondents file an amended response by 5 July 2010.
Given the conclusions reached by the Court with respect to cl.856.222 of Schedule 2 of the Migration Regulations, and in order to obviate any suggestion of bias on the part of the Court, the matter will be transferred to the docket of Federal Magistrate Raphael, and adjourned to a directions hearing before Federal Magistrate Raphael on a date to be fixed.
The Court will hear the parties as to costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 21 May 2010
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