AIX20 v Minister for Home Affairs

1. The appeal be allowed.
2. The orders made by the primary judge on 11 November 2020 in proceeding VID41/2020 be set aside and in their place, the Court orders that: 2.1 by 4.00pm on 18 August 2021, the First Respondent provide written answers to the interrogatories annexed as Annexure NY1 to the affidavit of Natalie Young dated 9 September 2020; and 2.2 the First Respondent pay the Appellant's costs of the interlocutory application filed on 10 September 2020.
3. The First Respondent pay the Appellant's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The parties have provided to the Court in advance of the hearing of the appeal a proposed consent order including an order allowing the appeal and other consequential orders. These reasons briefly explain why we made those orders. 2 The appellant sought leave to appeal against the whole of the judgment of the primary judge given on 11 November 2020 dismissing the appellant's interlocutory application requiring the first respondent ("the Minister") to provide answers to a number of interrogatories. A copy of the proposed interrogatories is attached as Annexure A to the primary judge's reasons for judgment (AIX20 v Minister for Home Affairs [2020] FCA 1640). Leave to appeal was granted by a Judge of the Court on 4 May 2021. 3 The proceeding before the primary judge concerns a challenge by the appellant to the validity of the Minister's decision to cancel the appellant's visa under s 501(3)(b) of the Migration Act 1958 (Cth) ("the Act"). The appellant's case according to ground two of the further amended originating application dated 21 August 2020 is that, in making the cancellation decision, the Minister failed to have proper regard to (inter alia) the prospect of the appellant being indefinitely detained. 4 According to the primary judge, in the reasons for the cancellation decision, the Minister accepted that Australia owed non-refoulement obligations in respect of the appellant and that if the appellant was returned to Iraq he would face a real chance of serious harm from the Iraqi authorities and Shia militias on the basis of his religion and his history of being detained by US forces for alleged involvement in terrorist activities. The Minister's reasons also noted that, as a consequence of the cancellation decision, the appellant would be liable to removal under s 198 of the Act as soon as reasonably practicable, and would in the meantime be detained under s 189. 5 The basis on which the interrogatories were said by the appellant to be relevant was that the answers were capable of forming the basis for an inference that persons in the appellant's situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198. 6 The primary judge did not allow the interrogatories because he considered that the answers would be irrelevant to the question whether the Minister had regard to information that was available to him at the time of his decision as opposed to further information that may have been within the knowledge of his Department but which was not before him at the time of his decision concerning the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq. The parties now agree that a question that arises for determination at the final hearing of the proceeding is whether an inference should be drawn that the Minister had personal knowledge of that matter. 7 The Minister now concedes that the primary judge should have held that the interrogatories were relevant to what the appellant alleges was the Minister's failure to have proper regard to the prospect of the appellant being detained indefinitely as a consequence of the cancellation decision. In particular, the Minister now accepts that, contrary to the reasoning of the primary judge, the interrogatories are directed to matters that are relevant to the question whether an inference should be drawn that, at the time the Minister made the cancellation decision, he had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq. The Minister also accepts that in holding that the interrogatories were not relevant to an issue in the proceeding, the primary judge made an error of the kind described in House v The King (1936) 55 CLR 499 at 505. 8 The primary judge held that, even if the interrogatories were answered in a manner that the appellant anticipated (showing that no or at least very few persons in the appellant's situation had been returned to Iraq), the answers would be inadmissible because the success of the challenge to the validity of the cancellation decision depended on "the material that was before the Minister". It is not necessary for us to consider whether that view is correct. However, we think it was an error for the primary judge to approach the application for interrogatories in that way because it involved the expression of a final view in relation to an issue that the parties now agree, and we accept, ought not to have been decided until the final hearing. 9 In those circumstances, and in light of the Minister's concession as to the relevance of the interrogatories to the Minister's personal knowledge, we consider it appropriate to make the proposed consent orders. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Nicholas, Mortimer and Anderson.