CEU22 v Minister for Home Affairs

1. The applicant's interlocutory application of 25 July 2022 be dismissed.
2. The parties' costs of and pertaining to the applicant's interlocutory application of 25 July 2022 be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SNADEN J: 1 By an interlocutory application dated 25 July 2022, the applicant seeks relief relating to some answers that the respondent has provided in response to interrogatories that a registrar of this court ordered her to answer. For the reasons that follow, that relief is not to be granted. The applicant's interlocutory application will be dismissed.

Background 2 The applicant is an Afghani national. He came to Australia in 2010 and, prior to 9 December 2021, was the holder of a class BS subclass 801 partner (residence) visa. On that date (9 December 2021), the then Minister for Home Affairs, the Hon. Karen Andrews MP (to whom I shall hereafter refer as Ms Andrews), made a decision under s 501(3) of the Migration Act 1958 (Cth) (the "Act") to cancel that visa on the basis that the applicant failed the "character test" for which s 501(6) of the Act provides and that the cancellation was in the national interest. 3 By an originating application dated 11 January 2022, the applicant seeks, by way of judicial review, prerogative relief directed to that decision (the "Cancellation Decision"). Various bases are identified in support of that cause; but, relevantly for present purposes, one of them posits that the then-Minister, Ms Andrews, failed "…to give proper, genuine or realistic consideration to the merits of the [a]pplicant's case". 4 Ms Andrews ceased to hold the office of Minister for Home Affairs on 23 May 2022. Her successor is the current Minister, the Hon. Clare O'Neil MP. 5 On 4 July 2022, a registrar of the court made orders requiring that the respondent answer interrogatories concerning certain aspects of the Cancellation Decision (including questions concerning the consideration of a brief prepared by department staff to assist in its making). Those interrogatories were answered by means of a response made on 18 July 2022, which was verified by an affidavit affirmed by Ms Josefina Soledad Wellings Booth, a solicitor employed by the department over which the respondent presides. That affidavit explained that Ms Wellings Booth had spoken personally to Ms Andrews in order to ascertain the answers to the interrogatories that the respondent had been ordered to answer. The answers to the interrogatories and the affidavit by which they were verified were filed and served in the usual way. 6 It is convenient to record at this juncture the questions that were the subject of the interrogatories that were ordered. The relevant order was as follows: 6. By 4pm AEST on 18 July 2022, the Respondent serve and file an affidavit providing written answers to the following interrogatories in accordance with Part 21 of the Federal Court Rules 2011 (Cth): (a) On what date, and at what time, did you receive the brief (containing reasons which you signed on 9 December 2021) from your Department for the purpose of making the Decision you made or purportedly made pursuant to s 501(3) of the Migration Act to cancel the Applicant's Class BS visa? (b) At what time on 9 December 2021 did you make the Decision? (c) How many minutes did your consideration (inclusive of reading time) of the Brief occupy, before you made the Decision? (d) Did you read the entirety of the statement of reasons, which had been prepared by your Department and had been included in the Brief, before you made the Decision? (e) How many minutes did your consideration (inclusive of reading time) of the statement of reasons occupy, before you made the Decision? (f) Did you read the entirety of each of the attachments identified in the "Index of Relevant Material for [the Applicant]" in Attachment 2 of the Brief, before making the Decision? 7 It is to be recalled that the respondent was not the relevant Minister at the time that the Cancellation Decision was made. That reality reflected in the answers that were given to the interrogatories, which were as follows: Pursuant to an order made on 4 July 2022, the [r]espondent provides the following answers to the [a]pplicant's interrogatories: The questions are directed to a decision made by the former Minister for Home Affairs. The answers to the questions are not within the knowledge of the [r]espondent, the present Minister for Home Affairs. The [r]espondent provides the following answers on the basis that "you" is understood to refer to the former Minister and on the basis of inquiries made of the former Minister pursuant to the letter annexed at JWB-1 of the below affidavit. 1 Interrogatory 1: On what date, and at what time, did you receive the brief (containing reasons which you signed on 9 December 2021) from your Department for the purpose of making the Decision you made or purportedly made pursuant to s 501(3) of the Migration Act to cancel the Applicant's Class BS visa? 1A. I do not recall the date and time. 2 Interrogatory 2: At what time on 9 December 2021 did you make the [Cancellation Decision]? 2A. I do not recall the exact time. 3 Interrogatory 3: How many minutes did your consideration (inclusive of reading time) of the Brief occupy, before you made the [Cancellation Decision]? 3A. I cannot recall. 4 Interrogatory 4: Did you read the entirety of the statement of reasons, which had been prepared by your Department and had been included in the Brief, before you made the [Cancellation Decision]? 4A. Yes, it was my invariable practice to read the statement of reasons in full before making a decision. 5 Interrogatory 5: How many minutes did your consideration (inclusive of reading time) of the statement of reasons occupy, before you made the [Cancellation Decision]? 5A. I cannot recall. 6 Interrogatory 6: Did you read the entirety of each of the attachments identified in the "Index of Relevant Material for [the applicant]" in Attachment 2 of the Brief, before making the [Cancellation Decision]? 6A. I do not recall but it was my invariable practice to read the entirety of the statement of reasons and review all relevant supporting material provided. 8 The affidavit of Ms Wellings Booth annexed (as annexure JWB-1) a letter that the respondent's solicitors sent to Ms Andrews, requesting her assistance in answering the interrogatories that were the subject of Registrar Haag's orders. 9 On 21 July 2022, the applicant's solicitor sent a letter to the respondent's solicitor, complaining that the respondent's answers to the interrogatories were insufficient. Four days later (and before the respondent had offered her reply), the interlocutory application to which these reasons relate was filed. By that application, the applicant seeks the following relief, namely: 1. At a time to be agreed upon between the parties and the Registrar, but no later than 3 weeks from the date of this order, the Hon Karen Andrews MP is to personally attend before the Registrar to be interrogated orally, pursuant to r 21.05(b) of the Federal Court Rules 2011 (Cth). 2. In the alternative to order 1: Within a week from the date of this order, pursuant to rr 21.05(a) and/or 21.04(2) of the Rules: a. The Hon Karen Andrews MP is to personally write and duly affirm or swear an affidavit in accordance with r 21.03 of the Rules, verifying sufficient answers to all of the interrogatories administered by Registrar Haag on 4 July 2022; b. The Respondent is to file and serve on the Applicant Form 40, attaching to it the affidavit referred to in order 2(a), in accordance with r 21.03 of the Rules. 3. In the alternative to order 2: Within a week from the date of this order, pursuant to rr 21.05(a) and/or 21.04(2) of the Rules: a. A person who: i. is a lawyer neither for the Respondent nor for any of her officers nor for the Hon Karen Andrews MP; and ii. is the Respondent or an officer of the Respondent; and iii. 'know[s] the facts' (within the meaning of r 21.04(3) of the Rules) is to write and duly affirm or swear an affidavit in accordance with r 21.03 of the Rules, verifying sufficient answers to all of the interrogatories administered by Registrar Haag on 4 July 2022; b. The Respondent is to file and serve on the Applicant Form 40, attaching the affidavit referred to in order 3(a), in accordance with r 21.03 of the Rules. 4. The costs of and incidental to this interlocutory application be the Applicant's costs, on an indemnity basis, in the proceedings in any event. 5. The costs of and incidental to the Applicant's interlocutory application filed on 22 April 2022 be the Applicant's costs, on an indemnity basis, in the proceedings in any event. 6. Any other orders that the Registrar sees fit. 10 The interlocutory application of 25 July 2022 contemplates determination by a registrar of the court. No such determination has been made and the matter has, instead, made its way before me. It was the subject of an oral hearing conducted on 31 October 2022. During the course of that hearing, senior counsel for the applicant indicated that proposed orders 3, 4 and 5 were not pressed and that the parties were agreed that the court should reserve the question of costs for later consideration. 11 In support of the relief that is sought, the applicant read two affidavits affirmed by his solicitor, Ms Elizabeth Wisser: one made on 25 July 2022 and the other on 21 October 2022. The respondent read four affidavits: the affidavit of Ms Wellings Booth (described above), an affidavit affirmed by her solicitor, Ms Emily Jane Nance, on 25 October 2022 and two affidavits of an employee of her (the respondent's) department, Mr Nigel Muir, one affirmed on 18 May 2022 and the other on 27 May 2022.