ZXXZ v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 855
•14 July 2023
FEDERAL COURT OF AUSTRALIA
ZXXZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 855
Review of: ZXXZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2910
XPZT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4447
File number: VID 175 of 2023 Judgment of: LOGAN J Date of judgment: 14 July 2023 Legislation: Migration Act 1953 (Cth) s 476A Cases cited: Australian Securities and Investment Commission v Somerville (1994) 51 FCR 38 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 11 Date of hearing: 14 July 2023 Solicitor for the Applicant: Asylum Seeker Resource Centre Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
VID 175 of 2023 BETWEEN: ZXXZ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
14 JULY 2023
THE COURT ORDERS THAT:
1.The hearing presently fixed for 24 July 2023 be adjourned to 23 October 2023 at 10:15am in Melbourne.
2.The second respondent lodge with the District Registrar of the Victorian registry, on or before 28 July 2023, the audio recording of the hearing before the second respondent in respect of the applicant’s review application.
3.Each of the parties, by arrangement with and in accordance with such directions as the Registrar may give, may access and uplift that audio recording.
4.On or before 28 August 2023, the applicant file and serve:
(a)any amended originating application (with leave to amend granted accordingly); and
(b)any related supplementary court book.
5.The time fixed by order 6 of the order of 10 May 2023 be varied to 10 October 2023.
6.The time fixed by order 7 of the order of 10 May 2023 be varied to 18 October 2023.
7.The time fixed by order 10 of the order of 10 May 2023 be varied to 20 October 2023.
8.Liberty to apply.
9.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
An applicant has been afforded the pseudonym ZXXZ, in accordance with a requirement found in the Migration Act 1953 (Cth) (Migration Act) in respect of a sometime holder of a derivatively obtained protection visa (Women at Risk (class XD) (subclass 204)) and, in any event, desirably of a sometimes holder of such a protection visa.
The applicant has applied to the Court under s 476A of the Migration Act for the judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), the second respondent, in respect of the non-revocation of the cancellation of his visa.
The grounds of the application, as presently pleaded, are as follows:
1.The Second Respondent, in finding that the Applicant would not be removed to Syria if the cancellation of his Women at Risk (class XD) (subclass 204) visa were not revoked, failed to act according to law.
a.At [149], the Second Respondent found that:
i.the Applicant is owed non-refoulement obligations;
ii.the Applicant would not be removed to Syria if his visa cancellation is not revoked;
iii.the “other consideration” of non-refoulement should be given neutral weight.
b.Section 197C(3) of the Migration Act 1958 (Cth) provides that a non-citizen is not to be removed to their country of origin if a protection finding has been made in the course of considering a protection visa application that has been finally determined.
c.Section (9) of the Migration Act 1958 (Cth) provides that an application is “finally determined” if it is no longer subject to any form of review under Part 5 or 7.
d.On 8 April 2021, the Applicant made an application for a Permanent Protection (class XA) (subclass 866) Visa. At the time of the decision of the Second Respondent, the Applicant’s protection visa application continued to be subject to review under Part 5. As such, it was not “finally determined”.
e.The Second Respondent, in finding that section 197C(3) applied to the Applicant, failed to act according to law, with the consequence that non-refoulement obligations were not given appropriate weight.
2.The failure of the Second Respondent to give weight to non-refoulement obligations owed to the Applicant was, in all of the circumstances, unreasonable.
a.At [149], the Second Respondent found that:
i.the Applicant is owed non-refoulement obligations;
ii.the Applicant would not be removed to Syria if his visa cancellation is not revoked;
iii.the “other consideration” of non-refoulement should be given neutral weight.
b.Notwithstanding section 197C of the Migration Act 1958 (Cth), non-refoulement to Syria was a direct consequence of the decision of the Second Respondent to refuse to revoke the mandatory cancellation of the Applicant’s Women at Risk (class XB) (subclass 204) Visa.
c.The Second Respondent was required to take into account all possible direct consequences of its decision.
d.In failing to do so, the Second Respondent acted unreasonably.
4 The parties promoted to the Court by consent an order that the Tribunal produce the audio recording of the hearing before the Tribunal. They did so at a time closely proximate to the appointed hearing date, 24 July 2023. That hearing date had been appointed by an order made on 10 May 2023.
At the time that order and related case management directions to the end of a hearing on 24 July 2023 were made, the applicant was in immigration detention. I have been informed today that he is no longer in immigration detention.
It was not immediately apparent to me on the face of the pleaded grounds of review why access to an audio recording of the hearing before the Tribunal, by either active party, was necessary. One reason given, in the course of oral submissions on behalf of the applicant today, was that it would be for the purpose of assisting the provision of advice. But that in itself is no reason at all to make an order for production.
The applicant was represented before the Tribunal, as was the Minister. I was informed today that the applicant had given oral evidence. In effect, what the applicant sought was an order for discovery and inspection of the audio recording. I was informed by each of the parties that in their experience, it was inherently likely, in accordance with the Tribunal’s usual practice, that the Tribunal would have retained an audio recording.
It is not for the Court to lend its authority to fishing exercises, however beneficial they might conceivably be. However, in the course of hearing submissions in relation to the pleaded grounds of review, it became apparent to me that at least the transcript of oral evidence may be relevant to the development of submissions in respect of ground 2c.
The Court does have power in a judicial review proceeding to order discovery: see Australian Securities and Investment Commission v Somerville (1994) 51 FCR 38. Discovery is not a matter of right but, rather, requires a grant of leave. Being persuaded that the oral evidence before the Tribunal may be relevant to an issue as pleaded, I am persuaded that the Court should make an order, the effect of which is to give to the parties the benefit of, in effect, discovery and inspection.
A question is as to how that might be effected. In my view, a way of effecting that is to order the second respondent to lodge with the District Registrar in Melbourne, the audio recording with leave to each of the other parties to the proceeding to access that audio recording by arrangement with the District Registrar, including, in that regard, leave to uplift.
Accordingly, there is a need to adjourn the hearing presently fixed for 24 July 2023 and to revise existing directions to the end of a new hearing date.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 26 July 2023
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