EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THE COURT NOTES THAT: 11. Insofar as the interlocutory application sought an order for leave to administer interrogatories in the terms set out in paragraphs [1], [2] and [3] of Annexure GH-5 to the affidavit of Greg Hanson, solicitor, affirmed on 9 August 2021, the application was adjourned in order to allow the parties the opportunity to endeavour to reach agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. INTRODUCTION 1 The applicant seeks leave to issue interrogatories and for discovery of certain categories of documents in relation to his application for judicial review of a decision made on 23 July 2021 by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). In that decision, the Minister refused the applicant's application for a protection visa on character grounds under s 501(1) of the Migration Act 1958 (Cth) (the Act) (the s 501(1) decision). 2 For the reasons set out below, the interlocutory application is allowed in part.

2. BACKGROUND 3 The applicant is a young man who has been in immigration detention for several years since the age of 15. His application for a protection visa has had a complex history. Suffice to say for present purposes that in 2018, the Administrative Appeals Tribunal (the Tribunal) found that the applicant was a person in respect of whom Australia owes protection obligations under s 36(2)(a) of the Act. Subsequently on 11 March 2021, the Tribunal remitted the decision under review to the Minister with a direction that the applicant satisfied the criterion in s 36(1C)(b) of the Act, noting the Minister's concession that the applicant was not a danger to the Australian community for the purposes of that provision. The Tribunal also found that the applicant demonstrated maturity, genuine remorse, and insight into his past behaviour as a juvenile (Tribunal's reasons at [18]). Following that decision, the Minister made the s 501(1) decision which is challenged in this proceeding to refuse to grant the protection visa. 4 I note that s 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test as defined in s 501(6). This power may be exercised personally by a delegate of the Minister or, as occurred in this case, by the Minister personally. Where the power is exercised personally by the Minister, the decision is not subject to merits review by the Tribunal. 5 The application for judicial review was instituted prior to the s 501(1) decision and seeks, among other things, a mandatory injunction requiring the Minister to grant the applicant a protection visa within 24 hours and a writ of prohibition restraining any minister from refusing the protection visa application under s 501(1) of the Act. Declaratory relief is also sought to the effect that: (1) insofar as cl 866.225(a) of Sch 2 to the Migration Regulations 1994 (Cth) prescribes public interest criterion (PIC) 4001 as a criterion for the grant of a protection visa, it is not a valid criterion for the purposes of s 35A(6)(b) of the Act; and (2) on or around 11 March 2021, all of the (valid) criteria for the grant of a protection visa to the applicant were satisfied and the Minister was therefore under the duty imposed by s 65(1)(a) of the Act to grant the visa to the applicant. 6 However, the application, which was originally listed for hearing on 26 July 2021, was adjourned on that day after the applicant received notice at 8:47pm on Sunday, 25 July 2021 of the s 501(1) decision by the Minister. Orders were made at the hearing on 26 July 2021 for the applicant to file a further amended originating application in light of the s 501(1) decision and for the parties to confer and use their best endeavours to agree categories of discovery, in default of which the applicant was to file an application for discovery and interrogatories. The costs of the adjournment were reserved. 7 By the further amended originating application filed on 9 August 2021 (the further amended originating application), the applicant expanded the relief which he seeks so as to include (among other things) a writ of certiorari to quash the Minister's decision under s 501(1) of the Act. 8 As is reflected in my orders, the Minister has agreed to provide discovery with respect to a number of categories, including: all of the material that was before the Minister when he made his decision on 23 July 2021; all submissions or briefs (including any "pre-briefs") provided to the Minister in the course of considering whether to refuse the applicant's visa application under s 501 created on or after 11 March 2021; all communications between the Department and any Minister's office and within the Department as to who should make the s 501 decision; and all communications between the Department and any Minister's office in relation to the making of the decision.

3. THE APPLICATION FOR INTERROGATORIES AND ADDITIONAL DISCOVERY 9 By an interlocutory application filed on 10 August 2021 (the interlocutory application), the applicant seeks: (a) leave to serve interrogatories set out in Annexure GH-5 to the affidavit of Greg Hanson, solicitor, affirmed on 9 August 2021 (the Hanson affidavit) pursuant to r 21.01 of the Federal Court Rules 2011 (Cth) (FCR); (b) discovery of: (i) the agreed categories of documents identified in Annexure GH-6 to the Hanson affidavit, as summarised at paragraph [11] above of these reasons; and (ii) certain additional categories of documents identified in paragraph [10] of the Hanson affidavit, pursuant to r 20.13 of the FCR. The information sought in [9(a)] and [10(b)(ii)] above is in aid of grounds 7 and 8 of the further amended originating application. The Hanson affidavit was read in support of the interlocutory application without objection. 10 The first three proposed interrogatories relate to ground 7. At the hearing, it became evident that it may be fruitful for the parties, with counsel's assistance, to pursue negotiations in order to determine whether the issues with respect to these interrogatories could be resolved by agreement. In those circumstances, the interlocutory application to this extent was deferred pending the outcome of those negotiations and, if agreement could not be reached, the provision of any evidence by the Minister with respect to the time and resources which answering those interrogatories are likely to entail. 11 The remaining interrogatories and the application for discovery in relation to the categories which are not agreed relate at least to ground 8 of the amended originating application. This ground alleges that the Minister did not engage in any active intellectual process with respect to the material he purportedly considered, or the Minister only purportedly made a decision when it was instead actually made by a delegate and not him personally. The particulars of ground 8 are as follows: (a) the conclusion that there was no active intellectual process, or that the decision was made by a delegate and not by the Minister personally, is to be inferred from the combination of: a. the practice of the Minister's Department, pursuant to which the Minister is presented with lengthy pre-drafted reasons for the decision; b. the volume of material purportedly considered by the Minister, running [to] approximately 600 pages; c. the time between which he first had those materials, which, insofar as the Applicant can say prior to discovering interrogatories, began no earlier than 19 July 2021, and ended no later than around the morning of 23 July 2021; d. the absence of any summary of those materials and indication that he considered such summary; e. the Minister's position and responsibilities within the Executive including within Cabinet; f. the inherent unlikelihood, by reason of the matters in subparagraphs b, c, d, and e, above, that the Minister read the relevant material; g. the imminency [sic] of the now-vacated hearing date in this matter of 26 July 2021, when the decision was made. 12 The ground also flags that further particulars may be provided after discovery and interrogatories. 13 At the hearing, the Minister raised a concern that ground 8 may, on one view, be understood to allege that the Minister did not read any of the material placed before him before making his decision. In arguendo, I indicated my view that if that was in fact alleged, it did not appear to have been properly pleaded given that such a contention would seem to involve an allegation of bad faith. Mr Guo of counsel, who appeared for the applicant, made it clear that that was not the applicant's case, explaining that: … firstly, can I put to bed any unease that my learned friend has about the scope of the ground. It's not a bad faith ground. As your Honour has said, with respect, correctly, this is a garden variety active intellectual process-type ground, like the kind of ground raised and run in [Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352]. I accept what's said about the untidiness in particular F, but I can say on the transcript, and be - and bind my client to this at trial, that we don't presently have a basis to run the kind of bad faith ground that my learned friend fears we might. It's not what's contemplated by ground A. (Transcript 16/8/21 at p. 28.21-28.) 14 The additional categories of discovery sought are identified at paragraph [10] of the Hanson affidavit (the additional categories) as follows: 6. A copy of any and all diary entries (whether hard copy or electronic), recording the times during which the Respondent was engaging in ministerial duties or functions from 16 July 2021 to 23 July 2021 inclusive (Relevant Period), including: a. Any entries recording the times and periods of time during which the Respondent was engaging in ministerial duties or functions connected with the decision made on 23 July 2021 to refuse to grant the Applicant's Protection (Class XA) visa purportedly pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Decision); b. Any entries recording the times and periods of time during which the Respondent was engaging in ministerial duties or functions other than those above at 6(a) (but not the substance of those duties or functions). 7. A copy of all communications received by the Respondent, including text messages, emails, submissions (including drafts), reasons (including drafts), briefing notes and supporting documents, provided to the respondent (including by private staff) during the Relevant Period in relation [to] the Decision (to the extent not already covered by another discovery category). 8. A copy of any records, notes or working documents, including handwritten notes, annotations or highlighting, made or created by [the Respondent] during the Relevant Period in relation to the Decision. (Emphasis added.) 15 In light of material already produced by the Minister, the applicant accepted that the Relevant Period for the purposes of the additional categories of discovery in paragraph [6] above should be narrowed to 22 July 2021 to 23 July 2021 inclusive. 16 At the hearing, Mr Guo submitted on behalf of the applicant that with respect to category 6 above, it was vital to the applicant's case to "unpack" the commitments which the Minister had on 22 to 23 July 2021 in order to determine what time the Minister had available to consider the voluminous material placed before him in relation to the s 501 decision, apparently without the assistance of a Departmental summary. This would, in his submission, be germane to question of whether the Court should infer that the Minister had failed to give that material any real consideration. As such, he submitted that the applicant required only the fact and time of the Minister's engagements over the two-day period, as opposed to the substance of those commitments. Given that the Minister had a number of places of work, the applicant also sought disclosure of the location at which any engagements took place so that travel time could be factored into the time that was potentially available to the Minister to consider the s 501 material. 17 The respondent opposed the orders for discovery in relation to the additional categories. 18 First, with respect to category 6, the respondent submitted that a Minister's diary would ordinarily be treated as "extremely sensitive and highly protected". The respondent also objected to disclosure of the Minister's location to the extent to which it may be identified in the diary entries. In this regard, Mr Solomon-Bridge, counsel for the respondent, submitted that the issue of disclosing the Minister's locations over the relevant period had been raised for the first time only during the course of the applicant's oral submissions and that the proposition may raise issues of public interest immunity on which he had not had the opportunity to obtain instructions. 19 I accept, as the respondent submitted, that an order requiring the disclosure of entries in a Minister's diary is not to be made lightly. Furthermore, I do not consider that the application for discovery gave fair notice of the fact that the applicant sought disclosure of the locations (to the extent that these were recorded in the diary entries) in addition to the timing of the Minister's engagements over the two-day period. At best, the proposed orders for discovery are ambiguous in this respect. Certainly there is no express reference to a requirement for location to be disclosed, as opposed to "the times and periods of time" during which the Minister was engaging in ministerial duties or functions connected to the s 501 decision and entries recording "the times and periods of time" during which he was engaged in other ministerial duties and functions. In those circumstances, I accept the applicant's submission as to the relevance of obtaining discovery of diary entries insofar as they record the times and periods of time sought, and consider that discovery of the diary entries should be ordered to this extent. Indeed, while discovery was opposed, the Minister properly accepted that to this extent, the diary entries were relevant. However, insofar as the interlocutory application seeks disclosure of any record of the Minister's locations in the diary entries, the application must be refused, at least at this stage of the proceeding. I therefore essentially agree with the amendments to the proposed orders for discovery identified by the Minister's counsel to make clear the limited nature of the discovery required and remove any ambiguity. 20 Secondly, the applicant pointed to an email chain on 21 and 22 July 2021 recently produced by the Minister indicating that there may have been some kind of engagement with respect to the s 501(1) decision by persons within the Minister's office before the s 501(1) decision was made. As such, the applicant submitted that it was "on the cards" that there may be material in the form of text messages, notes, and the like within the Minister's internal office that is relevant to ground 8 of the further amended originating application. No argument was put by the Minister that categories 7 and 8 of the application for additional discovery were not relevant or that it would be oppressive or unduly onerous to respond to these categories. To the contrary, the submission made against categories 7 and 8 was that the Minister's counsel had been instructed that if discovery was ordered, there were no documents that would fall within categories 7 and 8. However, assuming that to be correct, it does not, of course, follow that the application for discovery of these categories should be refused. 21 In my view, in the circumstances of this case, it is appropriate to allow the application for discovery of categories 7 and 8. In reaching this view, I have had regard not only to the matters referred to in the preceding paragraph. I have also taken into account inter alia the apparent existence of only a narrow window of time available to the Minister within which to consider his decision under s 501(1), the apparent absence of any summary of the voluminous material before him, and the fact that the discovery sought is limited to material of the kind described which was received, created or made by the Minister in relation to the s 501 decision over a two-day period. 22 Turning then to the question of interrogatories, at the hearing of the application the applicant did not press interrogatory 7 of the interrogatories sought, or the second sentence of interrogatory 5. The interrogatories with respect to ground 8 which are pressed are therefore as follows: 4. How many minutes did your consideration (inclusive of reading time) of the brief from your Department occupy, before you made the decision to refuse the Applicant's visa application? 5. Did you read the statement of draft reasons, which had been prepared by Department and had been included in the brief, before you made the decision to refuse the Applicant's visa application? 6. Did you read each page of the attachments identified in the "Index of Relevant Material" which was Attachment 2 of your brief? 23 Questions 4 and 5 mirror those interrogatories allowed by Griffiths J in EWV20 as litigation representative for AFF20 v Minister for Home Affairs [2021] FCA 272 (AFF20). In itself that would not be sufficient to grant leave to administer the same interrogatories in this case. However, I consider that leave should be granted to the applicant to administer interrogatories in terms of questions 4 and 5. The answers are plainly relevant to ground 8 of the further amended originating application. Further, as in AFF20, the evidence presently available highlights the limited period of time available to the Minister to consider a very substantial body of documentary material, including the draft statement of reasons provided by the Department, given, among other things, that it would appear that no summary of that material was provided to the Minister to assist him (as alleged in particular (d) of ground 8 of the further amended originating application). 24 Interrogatory 6 was objected to by the Minister on the basis that it went beyond the interrogatories allowed in AFF20 (and other cases) and that the Court: … should be cautious to avoid a kind of bracket creep if I can put it that way whereby you - and your Honour can take judicial notice of the high volume of migration litigation and the high volume of minister's decisions under section 501 would be, by case-by-case, another interrogatory is sought to be added to a form of interrogatories that has been ordered in the past and the burden that your Honour will understand that places on the minister as [an] institution[al] litigant. … … each time, there being, as I say, a bracket creep or a creep in the interrogatories that are administered such that in an individual case, it may not look [to be] more than [an] incremental increase. However, by going beyond those that have been ordered in the past, it leads to encourages … further forms of interrogatories but I don't put the submission any higher … (T 16/08/21 at pp. 24.39-25.23.) 25 With respect to the concern about "bracket creep" in the interrogatories that might be administered in other matters, the question before me is whether it is in the interests of justice that the interrogatories should be administered in this case. The importance of this is heightened given that the individual's liberty is in issue. Furthermore, it must be borne in mind that the Parliament did not envisage that relevant ministers would be the only decision-makers vested with the power to refuse a protection visa under s 501, but allowed for that power to be exercised also by duly-appointed delegates. As such, where the Minister decides to personally exercise the power, with that decision must come the potential for the Minister's obligations to be greater in terms of responding to procedural steps taken in pursuit of the individual's right to seek judicial review. 26 It was properly not submitted that to require the Minister to answer interrogatory 6 would impose an oppressive or unduly onerous burden on the Minister. Nor was it suggested that the question is not relevant or that the interrogatory amounts to a fishing expedition. In the circumstances, it is in the interests of justice to allow interrogatory 6 to be administered, as well as interrogatories 4 and 5.

4. CONCLUSION 27 For these reasons, the interlocutory application must be allowed in part. Costs will be reserved. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.