SZRCR v Minister for Immigration - [2012] FMCA 465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRCR v MINISTER FOR IMMIGRATION

[2012] FMCA 465

MIGRATION – Subpoena seeking production of documents in relation to Ministerial intervention request – notice of objection.

Migration Act 1958 (Cth), ss.36, 91P, 91Q, 474, 476
Federal Magistrates Court Rules, r.44.12

Applicant:

SZRCR

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 224 of 2012

Judgment of:

Barnes FM

Hearing date:

29 May 2012

Delivered at:

Sydney

Delivered on:

29 May 2012

REPRESENTATION

Solicitors for the Applicant:

McArdle Legal

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The notice of objection is upheld and the subpoena issued on 21 May 2012 set aside.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 224 of 2012

SZRCR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This matter was commenced by application filed in this court on 1 February 2012. The applicant issued a subpoena addressed to the respondent, the Minister for Immigration, on 21 May 2012. The Minister filed a notice of objection to the subpoena on 25 May 2012, and the matter comes before me initially for determination of the notice of objection to the subpoena in circumstances where the Minister also seeks that the substantive application should be dismissed at a show cause hearing.
Insofar as the applicant contends that the subpoena could “go on hold” and await the production of a court book by the Minister if this matter is to proceed by way of final hearing, I am not satisfied that that is an appropriate way to deal with a subpoena which calls for production of documents by 4 June 2012. Rather, it is appropriate to deal with the notice of objection to the subpoena as sought by the respondent.
In essence what is in issue is whether or not the documents sought are relevant, or whether the subpoena is without forensic purpose.
Relevantly, the subpoena seeks production of a copy of all documents, reports and notes referring, relating or pertaining to the Ministerial intervention request under s.91Q of the Migration Act 1958 (Cth), being a specified request number for the applicant who is named and identified by his client identification number.
While the solicitor for the applicant today endeavoured to assert that the subpoena was directed at obtaining documents relating to the decision of which review is sought by the application that was filed on 1 February 2012, on the face of the subpoena that is manifestly not the case. The application for review seeks review of the decision of a delegate of the respondent made on 7 November 2011 that the applicant’s application for a protection visa was invalid. A copy of a part of the letter advising the applicant of that decision is annexed to the affidavit of Mr McArdle affirmed on 1 February 2012. It is apparent from that letter that the decision in question of which review is sought was a decision that the applicant’s application for a protection visa was not valid. That decision was based on issues in relation to the applicant’s nationality.
The letter to the applicant also advised him that although his protection visa application had been assessed as invalid, it would be taken by the Department to be a request for the Minister to exercise his public interest power under s.91Q of the Act, and would be assessed against guidelines. The letter referred to the power of the Minister and applicable guidelines and invited the applicant to provide information at a future date relevant to such assessment. It pointed out that the Minister was under no obligation to consider exercising his power, and advised that if the applicant did not provide information within 28 days his request for consideration by the Minister would be assessed against the Guidelines based on information available to the Department.
However it is clear that the application before the court seeks review only of the decision that the protection visa application was invalid and does not relate to the Ministerial intervention request. That is apparent not only from the description of the migration decision in the application (as the decision of a delegate of the respondent made on 7 November 2011 that the applicant’s application for a protection visa was invalid) but also from the nature of the orders sought: a writ of certiorari, a declaration that the application for a protection visa is valid, and a writ of mandamus requiring the respondent to consider and determine the applicant’s application according to law. Moreover the grounds in the application are, in essence, based on s.91N of the Migration Act and assert that the respondent “misconstrued and misapplied” that section or “misdirected itself in considering the law of the Republic of Korea for the purposes of x91N”, or “misdirected itself in failing to consider the facts in so far as they showed that Section 36(2)(a) or (b) of the Act” (and something is missing from this ground). Nonetheless, it is clear that what is sought in these proceedings is review of the decision in relation to the validity of the applicant’s protection visa application.
Furthermore, as pointed out by the solicitor for the respondent, it is relevant to note that this court has no jurisdiction in relation to a determination under s.91Q of the Migration Act. When one turns to the provision of the Migration Act which confers jurisdiction on this court (s.476), subs.476(2) provides that the court has no jurisdiction in relation to certain decisions, including, relevantly, under s.476(2)(d):
a privative clause decision or purported privative clause decision mentioned in subsection 474(7)
Section 474(7) defines privative clause decisions within the meaning of s.474(2) to include, among other things, a decision of the Minister not to exercise or not to consider exercising his power under s.91Q of the Act.
On its face the subpoena seeks documents in relation to a request for a decision under s.91Q of the Act. As it stands, the subpoena is not relevant to the application that is before the court, which is an application to review a decision about the validity of a protection visa application. Further, that decision was made on 7 November 2011. It was only at the time of that decision that the Minister’s delegate indicated that the application for a visa would be treated as an application to the Minister under s.91Q. That application was to be determined in the future. In this respect the subpoena, on its face, addresses matters which post-date the decision which is the subject of the judicial review application.
I am now told from the bar table that what was intended was to seek production of documents that relate to the protection visa decision in relation to validity, notwithstanding that the subpoena is not expressed in those terms. However this is not such as to satisfy me that I should not uphold the notice of objection. Rather, I am satisfied that the subpoena should be construed as it stands. The subpoena is not expressed in a manner that indicates that it relates to the proceedings presently before the court. Nor is there any good reason for reading it in some other manner in the circumstances of this case. The notice of objection should be upheld and the subpoena set aside. The documents sought are irrelevant for the purposes of these proceedings and without any forensic purpose.
I note that if this matter is to proceed to final hearing, a matter that is yet to be determined, it would be usual and indeed it was foreshadowed by the solicitor for the respondent, for the Minister to provide a court book of relevant documents. Were there to be any dispute in relation to the extent of documentation provided by the Minister that could be addressed in the appropriate way at the appropriate time.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 6 June 2012