SZPZJ v Minister for Immigration
[2012] FMCA 67
•9 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPZJ v MINISTER FOR IMMIGRATION | [2012] FMCA 67 |
| PRACTICE AND PROCEDURE – Documents – Notice to Produce Documents – application to set aside Notice to Produce – where decision made to remove applicant as unlawful non-citizen – where removal involuntary – in context of failure to take into account relevant consideration – where applicant claimed Minister failed to consider Afghan government’s unwillingness to accept involuntary returnees – where request to return indicated involuntary nature of return – where laissez-passer issued by Afghan Government – whether Minister failed to take into account unwillingness of Afghan Government to accept return of applicant – where documents sought irrelevant information post-dating decision in issue – where documents sought might evidence doubt or objection since overcome – where documents sought go to question of reasonable practicability of removal, a question not open to this court – where applicant does not state clearly and upfront what information is requested – whether legitimate forensic purpose – whether fishing exercise – in context of allegation that applicant denied procedural fairness because no opportunity to comment on substance of adverse information – where information sought is mostly favourable to applicant – where other information supports decision already made – where substantial adverse information provided – whether Minister required to produce other documents. |
| Federal Magistrates Court Rules 2001, r.15A.17 Federal Court Rules, o.33 r.12(1) Migration Act 1958 (Cth), s.198(2) |
| Cheung Kong Infrastructure Holdings Limited v Bluescope Steel Limited [2010] FCA 739 Mandic v Phillis (2005) 225 ALR 760 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 Seven Network Ltd v News Ltd (No 5) 216 ALR 147 Comcare v John Holland Rail Pty Limited(No 5) [2011] FCA 622 Thomas v SMP (International) Pty Limited (No 2) [2010] NSWSC 870 SZPZJ v Minister for Immigration& Anor [2011] FMCA 980 Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300 at 429-431 |
| Applicant: | SZPZJ |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2623 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 December 2011 |
| Date of Last Submission: | 13 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Solicitors for the Applicant: | Surry Partners |
| Counsel for the Respondent: | Mr N Williams SC, Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Paragraphs 2, 4, 6, 7 and 8 of the Notice of Produce dated 5 December 2011 are set aside.
The costs of this application will be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2623 of 2011
| SZPZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
On 5 December 2011 the applicant served upon the respondent a Notice to Produce Documents. On the same day I was advised that the respondent would be resisting the production of certain documents and so I ordered that the notice be returnable before me on 13 December 2011. The notice contains eight paragraphs and at the hearing the respondent agreed to provide the documents referred to in the first paragraph which included the documents referred to in the third paragraph. The applicant conceded that the fourth paragraph was a general heading for the particular documents referred to in paragraphs 5 to 8. The respondent argues that those paragraphs should be set aside for failing to disclose the legitimate forensic purpose. In these reasons I shall make short reference to the relevant principles and some authorities on legitimate forensic purpose before turning to the specific paragraphs of the notice.
The power to issue a Notice to Produce by one party to another is found in Rule 15A.17 of the Federal Magistrates Court Rules 2001[1]:
“15A.17 Notices to Produce
(i) A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(ii) Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.”
[1] The “Rules”
The Rule is an abbreviated form of Order 33 Rule 12(1) of the Federal Court Rules[2] and for the purposes of this notice I am satisfied that the law as propounded in the Federal Court in relation to such notices would apply. In Cheung Kong Infrastructure Holdings Limited v Bluescope Steel Limited [2010] FCA 739 Foster J helpfully set out what he described as the relevant principles governing the setting aside of a notice to produce. His Honour noted at [24] that there was a body of authority in the Federal Court to the effect that a notice to produce had the same coercive affect as a subpoena for production. Rule 15A.17(ii) of this court’s rules makes the mandatory nature of compliance with the notice clear. At [29] his Honour indicated that the principles governing the exercise of the power to set aside a notice to produce were the same as the principles which govern the setting aside of a subpoena for production issued to a party. Citing Mandic v Phillis (2005) 225 ALR 760 at [28] – [38] he noted that Conti J, himself referring to Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at [102], confirmed that the issue of a subpoena would be an abuse of the process of the court if it is not used for a legitimate forensic purpose. Seven examples of non purposes are given of which two could possibly be of relevance in the instant case being:
“04.where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party; and
07.where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing”
[2] The “FC Rules”
At [35] his Honour opined:
“[35]Drawing on Deane and Gaudron JJ's above dicta, Beaumont J next stated that the determination of whether a subpoena was issued for a legitimate forensic purpose depends not just on an analysis of the motive of the issuing party, but also on the impact of the subpoena on the party upon whom it is served. At 103 of his reasons for judgment, his Honour enumerated two questions to be asked:—
"(1)Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].
(2)Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].”
[36]His Honour at 103 referred to the meaning of "apparent relevance" in the following terms:
"The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established."
In Kimberly Homes at 115-6, Hill J referred with approval to Beaumont J's test for relevance and emphasised that it was not necessary for the court to determine whether the documentation or material the subject of the subpoena would be admissible in any final hearing of the proceedings. Although it is not necessary for the material to meet the standards of relevance required of evidence adduced at trial, Hill J considered that it was appropriate to have regard to the issues in dispute, as they appeared in the pleadings. In Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504, Spender J also considered Beaumont J's test of "adjectival relevance" and explained it as follows:
"Notwithstanding the use of the word "possibly" in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour's conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made." As is the case presently before the Court, Spender J was there concerned with a submission that a request for documents (contained in a summons) amounted to merely a "fishing expedition".
Foster J then discussed the views expressed by Sackville J in Seven Network Ltd v News Ltd (No 5) 216 ALR 147 at [10] stating at [33]:
[33]In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 102 (Arnotts), Beaumont J stated that the issue of a subpoena would be an abuse of the process of the court if it is not used for a legitimate forensic purpose, referring thereby to the following passage in the reasons for judgment of Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-101:
Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:
“1.unless the subpoena was issued for the purpose of a pending trial, hearing or application ...
2.where to require the attendance of a witness would be oppressive ...
3.where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...
4.where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...
5.where the subpoena has been used for the purpose of obtaining discovery against a third party ...
6.where to require a party to comply with a subpoena to produce documents would be oppressive ...
7.where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ...
the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or, whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court. It seems to me, however, that when, as one does, one finds assertions that the court's jurisdiction to set aside a subpoena is but part of the inherent jurisdiction of the court ... coupled with assertions that a subpoena will be set aside if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive ... it is difficult to avoid the conclusion that, in reality, the court's jurisdiction to set aside a subpoena is but one aspect of the court's jurisdiction to act to prevent an abuse of process, and that particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.”
And continued at [35]:
“[35]Drawing on Deane and Gaudron JJ's above dicta, Beaumont J next stated that the determination of whether a subpoena was issued for a legitimate forensic purpose depends not just on an analysis of the motive of the issuing party, but also on the impact of the subpoena on the party upon whom it is served. His Honour enumerated two questions to be asked (at ALR 103 of his reasons for judgment):
(1)Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].
(2)Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].”
Some further thoughts on legitimate forensic purpose were expressed by Bromberg J in Comcare v John Holland Rail Pty Limited(No 5) [2011] FCA 622 when, after noting that the general principles propounded by Beaumont J in Arnotts have been applied or cited with approval, stated that the test of apparent relevance had also been applied in relation to documents sought under a notice to produce and then made some further observations at [32] to [34] which are worth identifying in the context of the instant case:
“[32]Whether a document or anticipated evidence is reasonably likely to throw light on an issue or issues in the proceeding depends principally on two things. Firstly, an assessment as to whether the anticipated evidence can reasonably be expected to be available so as to be deployed and secondly the likelihood that if available, the anticipated evidence will rationally affect the determination of a fact in issue. As Greenwood J said in McIlwain at [36] it is “necessary to establish grounds for a belief that a document or class of documents relating to a matter in question in the proceedings exists” and that such documents or class are available in the sense that they are in the possession, custody or power of the respondent to the motion. The requirement that material be relevant in the sense that it “could rationally affect (directly or indirectly), the assessment of the probability of the existence or a fact in issue” is adverted to by Greenwood J at subparagraph (j) of [35].
[33]As Weinberg J said in Fried v National Australia Bank Ltd; [2000] FCA 911; (2000) 175 ALR 194 at [30]:
“It is not a legitimate use of a subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value”
[34]A subpoena is not to be used as a ‘fishing’ or ‘trawling’ exercise. It will not however be fishing “when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is ‘on the cards’ that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena”: Liristis v Gadelrabb[2009] NSWSC 441 at [5] per Brereton J.”
Bromberg J continued his discussion of legitimate forensic purpose but mostly in the context of documents sought to be produced that went to the credit of a witness. Bromberg J approved of the judicial statements summarised by Pembroke J in Thomas v SMP (International) Pty Limited (No 2) [2010] NSWSC 870 including the following which I believe best encapsulates all that has previously been said:
“In all cases, there must be some actual identifiable basis – reasonably precise and tolerably clear – that indicates what the legitimate forensic purpose really is. The forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined.”
In the instant case two issues are identified in the application which relate to a decision by the Minister pursuant to s.198(2) of the Migration Act 1958, (Cth)[3] to remove the applicant from Australia. That sub-section relevantly states:
[3] The “Act”
“Removal from Australia of unlawful non-citizens
(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:
(a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
(b) who has not subsequently been immigration cleared; and
(c) who either:
(i) has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.”
The two heads of the claim that the respondent fell into jurisdictional error were; firstly the Minister failed to take into account certain relevant considerations specifically relating to the alleged unwillingness of the Republic of Afghanistan to readmit the applicant into his own country by virtue of his removal from Australian being involuntary. Secondly; there is a claim that in making the decision pursuant to s.198(2) the Minister failed to accord the applicant procedural fairness and thereby fell into jurisdictional error. It will be remembered that the applicant bought proceedings in this court seeking an interim injunction to restrain his removal from Australia and such an injunction was granted by Barnes FM; SZPZJ v Minister for Immigration& Anor [2011] FMCA 980. The notice to produce is a step in the process towards consideration of the application at final hearing.
In the interim application her Honour considered the current authorities dealing with the issue of reasonable practicability. She spelt out the context at [23] before making some important observations at [24] – [26].
“[24]It was acknowledged that the question of reasonable practicability is not a jurisdictional fact and is not for this court to determine (see M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131 and Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre and Another (2006) 155 FCR 465; [2006] FCA 1368 at [41] – [47] per Besanko J), but submitted that the proposed removal could be challenged on the grounds in the amended application as involving jurisdictional error. It was contended that the court could infer that there was a serious question to be tried that the decision-maker had failed to have regard to relevant considerations, whether consisting of the factual material in evidence or the unwillingness of the Afghani Government to admit the applicant.
[25]Reliance was placed on the general principle that a relevant consideration is a consideration which the decision-maker is “bound to take into account” determined by the construction of the statute conferring the discretion and, if not stated, determined by implication from the subject matter, scope and purpose of the Migration Act (see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 at [15] per Mason J and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 at [71]). There is no dispute between the parties in relation to the relevant principles for determining what are relevant considerations in a broad sense. Rather, the issue is the precise operation of those principles and whether there is a serious question to be tried in this respect.
[26]The applicant relied on remarks of the Full Court of the Federal Court in NATB and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [51] – [52] in relation to the meaning of “reasonably practicable” in s.198 of the Migration Act. Their Honours stated:
“We think it undesirable to attempt a definition of the expression `reasonably practicable' in the present context. It is impossible to foresee all circumstances which may arise. The expression requires a process of evaluation of the facts in each case.
However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of `practicable' set out at [47] above, Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.””
At [32] her Honour made reference to the factual situation that I believe conditioned the issuance of this notice to produce:
“[32]The applicant also relied on the fact that the willingness of another country to allow the person to enter its territorial boundaries was a non-physical factor relevant to reasonable practicability (consistent with NATB at [52]). It was said that there was some evidence (in particular the press reports) in relation to the willingness of Afghanistan (such as a report that the Minister for Refugees had changed his mind on asylum seeker deportation and/or was of the view that involuntary return of asylum seekers was not part of the MOU) and that it could be inferred that there was a serious question that the decision-maker had failed to take this evidence or issue into account.”
The state of the evidence at the time Barnes FM made her decision was that the applicant proposed producing press reports of statements by one of the signatories to the Memorandum of Understanding[4] which rules the arrangements under which the applicant is to be deported, to the effect that the MOU was never intended to operate in cases of involuntary removal. I am not aware of any other evidence of a more official nature at this stage. In contrast the respondent has filed an affidavit of Simon Andrew Schiwy, an assistant secretary in the International Co-Operation Branch of the Department of Immigration and Citizenship dealing with the arrangements made for the removal of this applicant. Those arrangements were made between the department and the Embassy of Afghanistan in Canberra. Although the applicant seeks to argue that this correspondence is irrelevant because it does not indicate the attitude of the government in Kabul, in particular it does not establish that the government in Kabul was aware of the involuntary nature of the deportation, he must undoubtedly face significant hurdles in establishing over this evidence that there was no proper consideration of the reasonable practicalities of removal. It is correct that the letter from the Australian Embassy in Afghanistan to the Ministry of Foreign Affairs advising of the planned departure of the applicant does not make specific reference to his involuntary removal but that letter is dated 10 November 2011, some time after the original letter to the Embassy in Canberra which was dated 25 October 2011 and is headed:
[4] “MOU”
“Upcoming involuntary return to Afghanistan of Mr Applicant.”
That letter produced from the Afghan Embassy under the seal of the Ministry for Foreign Affairs of the Islamic Republic of Afghanistan a laissez-passer pursuant to which the applicant:
“A citizen of Afghanistan is permitted to travel to Afghanistan without an Afghan passport. This travel document is valid until 27/01/2012.”
A laissez-passer is defined in the Shorter Oxford Dictionary as:
“A permit to travel to or to enter a particular place, a pass.”
In the Max Planck Encyclopedia of International Law the following mention is made of laissez-passer:
“When issued by a national government a laissez-passer is often for one-way travel to the issuing country. Some national governments issue laissez-passer to their own nationals as emergency passports. Others issue them to people who are stateless, who are unable to obtain a passport from their own government, or whose government is not recognized by the issuing country.”[5]
Although this doesn’t take the matter much further, it does indicate that the holder of a laissez-passer will be allowed entry into the country that issued the document.
[5] C. Hagedorn, 'Passports', in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008-, online edition, [ visited on 7 Feburary 2012.
The existence of this document responding to a request that clearly indicates that the person to be issued with it is being removed involuntarily from Australia is, to my mind, a defining fact. It raises a very high inference that the holder of the laissez-passer will be entitled to enter his country of origin. Even if those in the department tasked with obtaining this document had reason to believe that it might not be forthcoming, because re-entry might not be permitted to a person such as the applicant, those doubts were put to rest by the issuance of the document. Even if there are people in the department who might have committed to writing concern that the relevant authority in Kabul might not be aware of the involuntary nature of the removal and might, upon being made so aware decline to receive him, such concerns are negated by the existence under the seal of that authorisation that, on its face, grants the applicant the right.
It is in this context that I now look to the individual documents sought.
Paragraph 2
The documents sought under this paragraph are:
“Documents and records of the request for and the approval given by the Secretary of the Department of Immigration for two DIAC officers to escort the applicant to return to Kabul referred to in that Removals Availability Assessment as at 25 November 2011 which was part of annexure A of the affidavit of Elizabeth Warner Knight made 28 November 2011 in these proceedings.”
I am told that the two DIAC officers referred to are not persons required to guard the applicant, they are officers of the department of an executive nature. In arguendo it was suggested that these persons might be travelling to Kabul to ease the passage of the applicant through the bureaucratic processes greeting him upon his return. They could be there to smooth away any objections to his return. Let us assume for one moment that this is the case. What would such documents reveal, possibly a concern by the department that bureaucratic entanglement might exist or that persuasion to permit the applicant’s entry might be needed. But such evidence would only go to establish that the respondent did in fact take into account relevant considerations including the unwillingness of the government of the Islamic Republic of Afghanistan to admit the applicant. In my view the applicant does not know or have any real idea of what the documentation may contain or the reason why these officers are being permitted to go to Kabul indicates that the request is no more than a fishing expedition. It seeks to discover information which will either be totally irrelevant to the case or sink it. Furthermore, as the respondent says in the helpful written submissions prepared by Mr Reilly:
“[5]Paragraph 2 of the Notice seeks documents referred to in a document (the Removal Availability Assessment of 25 November 2011) which post-dates the decision in issue in the proceedings. Documents which post date the decision under challenge can have no relevance in establishing either ground pleaded. Moreover the nature of the documents sought, concerning the request and approval by the Secretary of the Department of Immigration and Citizenship (DIAC) for two DIAC officers to escort the Applicant to Kabul, have no apparent relevance to either ground in any case. Paragraph 2 of the Notice should be set aside.”
Paragraph 5
The documents sought under this paragraph are:
“All records of communications between the Department of Immigration and Citizenship (DIAC), the Embassy of Afghanistan in Canberra, the Australian Embassy in Kabul and representatives of the Government of Afghanistan regarding the proposed involuntary removal of the applicant to Afghanistan, including any communications referred to in the affidavit of Simon Andrew Schiwy of 17 November 2011 made in these proceedings which were not annexed to that affidavit.”
The respondent asks what is the relevance of these documents to whether there was a failure to take into account a relevant consideration by the decision maker (being whether the applicant’s removal was reasonably practicable in the light of the evidence of Mr Schiwy’s affidavit). The only suggested ground upon which the removal might not have been reasonably practical was the refusal of the Afghan government to allow the applicant to enter his own country. The Schiwy affidavit establishes that an application was made to the proper authorities in the Embassy and the laissez-passer was forthcoming. At [45] of Barnes FM judgment her Honour said:
“[45]It is apparent from this chain of documentation that it cannot arguably be inferred on the evidence before the court that the decision-maker failed to take into account the willingness or unwillingness of the Government of Afghanistan to admit the applicant. Indeed, the overwhelming inference on the evidence before the court is that the issue of travel documentation, insofar as that appears from the applicant’s submissions to be part of the basis for this ground, was addressed government to government.”
The respondent argues that the notice is too wide in that it is not restricted to documentation arising prior to the date of the decision on 10 November 2011 which must be right. But even if it was restricted to communications on or before that date what is the relevance of documents evidencing the existence of a doubt or even an objection since overcome, other than to bolster the respondent’s case.
Paragraph 6
The documents sought under this paragraph are:
“All records of communications between the NSW International Obligations Branch and the International Cooperation Branch of DIAC regarding the proposed involuntary removal of the applicant to Afghanistan.”
The respondent argues that the paragraph is too wide in not being limited to communications on or before 10 November and in any case has no apparent relevance to either ground of review. The applicant in his submissions in reply makes no reference to paragraph 6 and I am unable to see the relevance.
Paragraph 7
The documents sought under this paragraph are:
“All files and records of the International Cooperation Branch of DIAC Afghanistan regarding the proposed involuntary removal of the applicant to Afghanistan and including files and records relating to the issue of a travel document to him by Afghanistan and the willingness of the government of Afghanistan to admit him upon his involuntary removal from Australia.”
These documents like many of those requested in the other paragraphs might be relevant if the court’s job was to consider for itself whether or not removal of the applicant was reasonably practicable but that is not the court’s task. What is being said against the department is that it failed to take various things into account when coming to that decision. Given the facts on the ground what is the relevance of internal documents pointing to possible doubts and how does the existence of such documents create an inference or prove that they were not taken into account in the face of the laissez passer? I would add for the sake of completeness that in his written submissions and reply this paragraph is not addressed by the applicants.
Paragraph 8
The documents sought under this paragraph are:
“All ministerial submissions relating to the removal of the applicant and/or the issue of a travel document to the applicant to enable his removal.”
Paragraph 7 is also not limited to documents coming into being prior to 10 November 2011. It seems to me to be irrelevant for the same reasons that I have already given. This paragraph is also not addressed in the submissions in reply but one paragraph of those submissions seems to me to indicate why the applicant is making the request for these documents and why it is irrelevant to the claim. In paragraph 10 of those submissions the applicant argues:
“[10]As the applicant’s removal must be reasonable practicable pursuant to s 198(2) Migration Act it is reasonably likely the documents sought will be concerned with practicalities of an involuntary removal raised by the attitude of the Afghan domestic and consular authorities to the admission of the applicant. This is a relevant consideration in determining whether removal is reasonably practicable: Beyazkilinc v Manager, Baxter Immigration and Processing Centre 92006) 155 FCR 465 at [32].”
What that paragraph goes to is the reasonable practicality of removal, it does not go to the failure to take a matter into account. It is as if the applicant wishes to say to the court “I will prove to you that my removal is not reasonably practicable so that you can then say that the Minister must not have taken that into account.” What he should be doing consistent with the authorities upon failure to take into account relevant information, is to show clearly and upfront what that information is: Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300 at 429-431. If the applicant has no such information then seeking to obtain it by the issuance of a notice to produce must be a fishing expedition.
I have dealt with the notice in the context of the first ground of application. The second ground of application relates to an allegation that the removal decision was affected by jurisdictional error because the applicant was not provided with an opportunity to comment on the substance of adverse information relied upon in the assessment. The duty to provide this opportunity is in respect of credible, relevant and significant information that is adverse to the applicant’s interest. It is here that the applicant finds himself caught between the two prongs of Morton’s Fork. Most of the information which he seeks is information that may establish the difficulty the applicant might have in being granted entry to his own country. That information is not adverse to his interests, it is supportive of them. Any other information which would go to establish that he was able to enter Afghanistan is information that would support the decision already taken. Why should the decision maker be required to provide that level of supportive evidence? The substantive piece of adverse evidence is the existence of the laissez-passer which would be the culmination of all the additional evidence supporting the efficacy of the removal. That document and the letter of request, which clearly indicates the removal is involuntary, have been provided. In my view there is no obligation upon the respondent to produce any of the documents request in the notice to produce.
Paragraphs 2, 4, 6, 7 and 8 of the Notice of Produce dated 5 December 2011 are set aside. The costs of this application will be reserved.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 9 February 2012
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