Plaintiff S111A/2018 v Minister for Home Affairs [2019] FCA 1271 | Case summary

By 13 September 2019: (a) the respondents give a first tranche of discovery of the categories of documents in annexure 1, which includes discovery responsive to category 4; and (b) the third respondent file and serve an "open" affidavit in support of any public interest immunity claims in respect of documents responsive to category 4.
By 18 October 2019, the respondents give a second tranche of discovery of the categories of documents in annexure 1.
The respondents produce copies of each document (or part thereof) referred to in a list of documents served in accordance with paragraph 1 or 2 of these orders that is not subject to an objection to production (on grounds of public interest immunity, legal professional privilege or otherwise) within 7 days of service of such list.
The applicants notify the respondents which, if any, of the objections to production are disputed within 14 days of service of a list of documents in accordance with paragraph 1 or 2 of these orders.
The matter be listed for case management hearing and for the hearing of any dispute as to production on 13 December 2019 at 9.30am with a present estimate of up to a day.
By 4 weeks before hearing, the respondents file and serve: (a) any further evidence relating to the dispute as to production; and (b) written submissions limited to 10 pages.
By 2 weeks before hearing, the applicants file and serve: (a) any evidence relating to the dispute as to production; and (b) written submissions limited to 10 pages.
By 1 week before hearing, the respondents file and serve: (a) any evidence in reply relating to the dispute as to production; and (b) any written submissions in reply, limited to 5 pages.
The submissions be in 12pt font with 1.5 line spacing.
There be liberty to apply on 3 days' written notice.
Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 When this interlocutory hearing was called, both at 9:30 AM on 13 August 2019, when the applicants' application for discovery was set down for hearing, and at 10:15 AM, there was no appearance on behalf of the applicants. What follows are the reasons for the orders which I made on that day. 2 These proceedings were remitted, by consent, by the High Court by order made on 20 February 2019, in part to this Court and in part to the Federal Circuit Court of Australia. It was necessary or appropriate for part of the proceedings then to be transferred to this Court by the Federal Circuit Court and that occurred by order made on 16 May 2019. I shall refer to the plaintiffs as applicants and the defendants as respondents. 3 There are eight applicants. The three respondents are the Minister for Home Affairs, the Commonwealth of Australia, and the Director-General of Security. 4 On 29 May 2019 I made orders, relevantly, as follows: 1. The Applicants identify the categories of documents over which they seek discovery by 19 June 2019. 2. The parties attempt to agree the categories of documents for discovery and, in default of agreement, by 24 July 2019, the parties are to file and serve documents delineating the categories which are in dispute, together with a 3 page outline of submissions. 3. The matter be listed on 31 July 2019 at 9.30 am on an estimate of half a day for a further case management hearing, including for determination of any dispute as to categories of documents if suitable to be determined on that day or, if not, for the making of timetabling orders for the determination of such dispute. 4. Proceedings NSD584 of 2019 and NSD 779 of 2019 be consolidated. 5 On 20 June 2019 the applicants served proposed categories of discovery on the respondents. (As will appear, some of those categories are no longer pressed.) Short written submissions were received from the respondents in accordance with order 2, which annexed a schedule of the respondents' position in respect of each of the applicants' proposed categories. Consent orders were forwarded to my chambers on 30 July 2019 for an extension of the timetable for the parties to attempt to agree categories of discovery. On 31 July 2019 I made orders standing the matter over and providing for the applicants to file a 3 page outline of submissions by 5 August 2019. Although no written submissions as such were received from the applicants, a lengthy schedule recording the applicants' response in respect of each proposed category was filed and served on 5 August 2019. 6 The issues to which any discovery should be directed appear from the amended statement of claim (ASOC) dated 9 October 2018 and the defence dated 9 November 2018. 7 Part of the relief claimed is an order in the nature of mandamus compelling the Minister to consider the application for a visa made by the first applicant on 12 June 2015 and an order in the nature of certiorari quashing the purported visa refusal decision dated 13 June 2018. 8 Another part of the relief claimed is damages for false imprisonment and a declaration that the detention of the applicants is not authorised by law. 9 It is appropriate to begin by considering the position of the first applicant separately from the position of the second to eighth applicants. So far as concerns the first applicant, there is an issue on the pleadings as to the validity of the Minister's refusal of his protection visa application made on 13 June 2018, which emerges from the ASOC at [104]-[105] and the corresponding paragraphs of the defence. There is also an issue as to the validity of the April 2018 ASIO (current) adverse security assessment. The relevant particulars to [105] of the ASOC were in the following terms: (i) The validity of the Visa Refusal Decision is dependent on the validity of the Current Adverse Security Assessment. (ii) In issuing the Current Adverse Security Assessment, ASIO had regard to and/or based its decision to a material extent on the invalid Interpol Red Notice. (iii) In issuing the Current Adverse Security Assessment, ASIO failed to have regard to the First Plaintiff's well-founded fear of persecution, which was a reason for him to take (and have taken) steps in the past. (iv) In issuing the Current Adverse Security Assessment, ASIO relied on information which it did not disclose the First Plaintiff. (v) The Current adverse Security Assessment is invalid because: (A) in issuing it, ASIO did not afford the First Plaintiff procedural fairness; (B) the decision to issue the Current Adverse Security Assessment was legally unreasonable; (C) in issuing it, ASIO failed to have regard to a mandatory consideration or otherwise misapprehended its statutory task. (vi) Further particulars and/or grounds will be provided after compulsory production and/or the provision of information by the Defendants. 10 For example, it is in issue whether the April 2018 adverse security assessment was based, to a significant extent, on the Interpol Red Notice. 11 It is also in issue, in relation to the detention of each of the applicants, whether the first and second respondents pursued their purpose of determining whether to permit each applicant to make a valid application for a visa as soon as reasonably practicable: see for example [126]-[127] of the ASOC and the corresponding paragraphs of the defence. 12 On this question depends whether the detention of each applicant had extended longer than the period permitted under the Migration Act and was therefore, on the applicants' case, unlawful: see [128] of the ASOC. 13 In relation to the detention of each of the applicants between 18 May 2015 and 13 June 2018 there is an issue whether the first and second respondents have pursued the purpose of the detention of the applicants, being to receive, investigate and determine the protection visa applications, as soon as reasonably practicable: see [129]-[131] of the ASOC and the corresponding paragraphs of the defence. 14 The framework is provided by the Federal Court Rules 2011 (Cth) rr 20.11 and 20.14, as follows: 20.11 Discovery must be for the just resolution of the proceeding A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. … 20.14 Standard discovery (1) If the Court orders a party to give standard discovery, the party must give discovery of documents: (a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and (b) of which, after a reasonable search, the party is aware; and (c) that are, or have been, in the party's control. (2) For paragraph (1)(a), the documents must meet at least one of the following criteria: (a) the documents are those on which the party intends to rely; (b) the documents adversely affect the party's own case; (c) the documents support another party's case; (d) the documents adversely affect another party's case. (3) For paragraph (1)(b), in making a reasonable search, a party may take into account the following: (a) the nature and complexity of the proceeding; (b) the number of documents involved; (c) the ease and cost of retrieving a document; (d) the significance of any document likely to be found; (e) any other relevant matter. (4) In this rule, a reference to an affidavit is a reference to: (a) an affidavit accompanying an originating application; and (b) an affidavit in response to the affidavit accompanying the originating application. Note: Control is defined in the Dictionary. 15 It is convenient first to set out the categories to the discovery of which the respondents consented. The orders I make are in substance the same as these categories. They are as follows: A4 Any documents held by the Minister administering the Migration Act 1958 (Cth); and/or the Department responsible for matters arising under the Migration Act, relating to the Minister's consideration of whether to permit any of the applicants to make valid visa applications and/or the Minister's consideration of the protection visa applications made by each applicant. D180 All submissions, dated on or after 11 May 2012, provided to the Minister administering the Migration Act 1958 (Cth) regarding whether any of the applicants should be permitted to apply for visas or any of the applicant's applications for protection visas, including all attachments and recommendations. A7 Any material before the Minister for Home Affairs in making the determination dated 13 June 2018 to refuse the first applicant's application for a protection visa. E2 The material before the third respondent in making his decision to issue an adverse security assessment in relation to the first applicant dated 23 April 2018. This includes documents referred to in the footnotes in the Truncated Statement of Grounds for the 2018 Adverse Security Assessment, that is, the documents referred to in the applicants' categories D1 to D178. 16 It is in this context that I turn to consider the categories of discovery contended for by the applicants. 17 I would make two general observations. First, in some of these categories the applicants appear to me to approach the matter back to front, that is, by asking for a general category of documents, whether or not those documents formed part of the administrative decision-making of which they complain. Secondly, and probably consequentially, from time to time the existence of documents within the general categories is speculative. 18 Category A1 is "All documents, letters, file notes, emails and correspondence between Home Affairs, ASIS, ASIO, DEFAT, DIAC, Attorney-General's Department and Australian Federal Police in respect of each applicant. ("Australian Authorities")". The respondents object to this category but consent to the category proposed in relation to A4: see [15] above. The applicants' response is that the correspondence sought is relevant to "showing steps taken of lifting the bar, release from detention or visa refusal by the Minister or has unreasonably delayed in the exercise of the relevant functions." In my opinion, this category is insufficiently directed to the issues arising from the pleadings and is too broad. I would not order discovery by reference to this proposed category. 19 Category A2 is "All documents, letters, file notes, emails and correspondence between Australian Authorities and Interpol in respect of each applicant". Again, the respondents object to this category but consent to the category in A4: see [15] above. The applicants' response is that the correspondence sought is "relevant to whether the Interpol Red Notice and the information provided by Interpol affected the Minister's delay in deciding to lift the bar and /or rejecting visa or Community detention in respect of each applicant since 11 May 2012." In my opinion, the category is similarly insufficiently directed to the issues arising from the pleadings and is too broad. I would not order discovery by reference to this proposed category. 20 I have reached the same conclusion, for the same reasons, in relation to proposed category A3, being "All documents, letters, file notes, emails and correspondence between Australian Authorities and Egyptian Authorities in respect of each applicant." The applicants contend that the correspondence sought is "relevant to whether the information provided by Egyptian Authorities or any undisclosed deal between the both Authorities had affected the Minister's delay in taking decision of lifting the bar and /or rejecting visa or Community detention in respect of each applicant, or has unreasonably delayed in the exercise of the relevant functions, and whether this information affected ASIO's ASA." In my opinion, the category is similarly insufficiently directed to the issues arising from the pleadings and is too broad. I would not order discovery by reference to this proposed category. The reference to "any undisclosed deal" is particularly speculative. 21 Similarly, I would not order discovery by reference to the proposed category A4: "All documents, letters, file notes, emails and correspondence between Minister for Home Affairs, ASIS and ASIO since 2012 in respect of each applicant." The applicants contend the correspondence is "relevant to whether there are directions, advice or requests were provided or received by or from ASIO had affected the Minister's delay in taking decision of lifting the bar in respect the ASIO's ASA issuance or whether the Minister influenced ASIO's ASA." I have set out at [15] above however the terms of the respondents' consent to their own alternative formulation of A4, noting the category proposed by the respondents is intended by them to capture the material relevant to the question whether the Minister has unreasonably delayed in the exercise of the relevant functions. 22 Proposed category A5 is in the following terms: "All documents, letters, file notes, emails and correspondence between Home Affairs and the Attorney General Department in respect of each applicant." The applicants contend as follows: The correspondence sought is the correspondence relevant to seeking what directions, advice or requests were provided or received from Attorney Generals Department in respect of whether it was correctly followed or taken into consideration, relevant to the Minister's • Whether it's relation with the Minister's delay. • Whether there was any negligence in department of the Minister of Immigration. I would not order discovery by reference to this proposed category. I repeat my general observations at [17] above, particularly the speculative quality of the applicants' contention. I would also note that "negligence", if understood as describing something different from unreasonable delay, is not raised on the pleadings. 23 Proposed category A6 is in the following terms: "All documents, letters, file notes, emails and correspondence received from British Authorities to Australian Authorities in respect of each applicant." The applicants contend that the correspondence is "relevant to determining whether the information provided by British Authorities led to or affected the Minister's delay in taking decision of lifting the bar and /or rejecting visa or Community detention in respect of each applicant, and whether this information affected ASIO's ASA." I would not order discovery by reference to this proposed category. I repeat my general observations at [17] above. 24 Proposed category A7 is in the following terms: "All documents, letters, records, interview transcripts, file notes, emails and correspondence received from Australian Federal Police, ASIS and ASIO relied upon by the Minister for Home Affairs in considering and determining a Protection Class visa in respect of each applicant." I note the category put forward on behalf of the respondents at [15] above. The applicants' contention is as follows: The Applicant seeks ALL material before the Minister for Home Affairs that was available to him, whether it was considered or not, for making the determination dated 13 June 2018 to refuse the first applicant's application for a protection visa. The correspondence sought is the correspondence relevant to determining whether the information provided by the Australian Federal Police and ASIO to the Minister led of affected the Minister's delay in taking decision of lifting the bar and /or rejecting visa or Community detention in respect of each applicant since 11 May 2012. • Whether, the information provided by the Australian Federal Police to ASIO led of affected the ASIO's ASA in respect of the first applicant. • Whether it was correctly followed or taken into consideration by the Minister. (Original emphasis.) I repeat my general observations at [17] above. I do not order discovery of this category as contended for by the applicants. 25 The proposed categories A8-A12 are similarly overbroad and insufficiently directed to the issues arising from the pleadings. The terms of these categories, together with the applicants' contention, are as follows: A8 All documents, letters, records, interview transcripts, file notes, emails and correspondence between Minister of Home Affairs and SERCO in respect of each applicant. The correspondence sought is the correspondence relevant to determining whether the information provided by Serco was taken into consideration by the Minister in respect of considering the character of each applicant, since 11 May 2012. A9 All Case Update documents in respect of each applicant. The Case Update documents sought are those relevant to determining whether if any of the documents led to or affected the Minister's delay in decision of lifting the bar or has unreasonably delayed in the exercise of the relevant functions. A10 All possible loss documents in respect of each applicant. The loss documents sought are those relevant to determining whether if any of the documents led to or affected the Minister's delay in decision of lifting the bar or has unreasonably delayed in the exercise of the relevant functions. A11 All Hot Issues Briefs in respect of each applicant. The Hot Issues Briefs documents sought are those relevant to determining whether if any of the documents led to or affected the Minister's delay in decision of lifting the bar or has unreasonably delayed in the exercise of the relevant functions. A12 All Daily Issues Briefs and Daily Executive Briefs in respect of each applicant. The Daily Issues Briefs and Daily Executive Brief documents sought are those relevant to determining whether if any of the documents led to or affected the Minister's delay in decision of lifting the bar or has unreasonably delayed in the exercise of the relevant functions. 26 In respect of each of these proposed categories I repeat my general observations in [17] above. I do not order discovery of these categories as contended for by the applicants 27 I reach the same conclusion in relation to proposed categories B1, B2 and B3, as follows, including the applicants' contentions: B1 All documents, letters, records, interview transcripts, file notes, emails and correspondence relied upon by the Minister for Immigration and Border Protection in consideration of [the first applicant's] children. The documents sought are those documents relevant to determining whether if any of the documents in respect of consideration of best interests of the children were considered or affected the Minister's delay in decision of lifting the bar or has unreasonably delayed in the exercise of the relevant functions. [The categories proposed by the respondents in A4 and D180 relate to this category.] B2 All case updates regarding the best interest considerations of the children. The documents sought are those documents relevant to determining whether the Minister considered or correctly followed the best interests of children. B3 All possible loss documents the best interest considerations of the children. The documents sought are those documents relevant to determining whether if any of the documents in respect of consideration of best interests of the children were considered or affected the Minister's delay in decision of lifting the bar or has unreasonably delayed in the exercise of the relevant functions. [The category proposed by the respondents in A4 relates to these last two categories.] 28 In relation to each of the applicants' proposed categories I have thus far considered, they may be relevant to a general enquiry but that is not the role of this Court. Also, the issues which discovery of documents may be directed are those which arise on the pleadings. In the case of standard discovery under r 20.14, a party is only liable to discover documents which are directly relevant to those issues: rr 20.14(1)(a), 20.14(2); this is in contrast to the earlier test as classically explained in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ. 29 Proposed categories C1-C5, which the applicants now do not press, were in the following terms: C1 All documents, letters, file notes, emails, text messages and correspondence to and from Home Affairs officers and employees in respect of the removal process of the first applicant on or around 17 August 2018. C2 All documents, letters, file notes, emails, text messages and correspondence to and from the Minister of Home Affairs in respect of the removal process of the first applicant on or around 17 August 2018. C3 All documents, letters, file notes, emails, text messages and correspondence and from officer known as 'Jiehan" from Removal Operations NSW in respect of the removal process of the first applicant on or around 17 August 2018. C4 All documents, letters, file notes, emails, text messages and correspondence to and from Australian Border Force officers and employees in respect of the removal process of the first applicant on or around 17 August 2018. C5 All case updates and possible loss documents in respect of the removal process of the first applicant on or around 17 August 2018. It is unnecessary to say anything more about them. 30 The proposed categories D1-D178 relate to documents referred to in the footnotes in the Truncated Statement of Grounds for the 2018 adverse security assessment in relation to the first applicant. As I understand it, these documents fall within category E2 set out at [15] above. The applicants note the respondents' consent to discovery of these documents. As such, it is not necessary to order discovery of categories D1 to D178. 31 Proposed category D179 is in the following terms: "IGIS inquiry mr-e (The Classified Report)". The applicants' contention is that this document is relevant "because it provides information relating to the Minister's delay in lifting the bar and/or releasing from detention in respect of each applicant, and contains information in respect of the first applicant's matters in Egypt and the UK." The respondents contend: that this report addresses the processes surrounding the first applicant's clearance for community detention, the Interpol Red Notice, and the subsequent revocation of that clearance; that those matters are pleaded at [22], [26] and [27] of the ASOC; but those matters have been admitted by the respondents and do not in any event bear upon the reasonableness of the time taken to determine whether to permit the applicants to make valid visa applications. 32 The applicants have not persuaded me that this category is relevant to any fact in issue arising from the pleadings. The applicants have not shown how this material would be relevant to the reasonableness of the time taken to determine whether to permit the applicants to make valid visa applications or to consider those applications. 33 Proposed categories D180 and D181 are in the following terms: D180 All non-redacted Ministerial Submissions regarding my and my family's case including all attachments and recommendations D181 All attachments and recommendations related to ADD2015750406 Redacted FINAL-S46A Sent by DIBP on 11.11.2013 Unsigned and Noted by Minister In place of each of these categories the respondents agree to discovery of their alternative formulation of category D180, reproduced at [15] above. The applicants appear to agree to this proposal. 34 Proposed category D182 is in the following terms: "The Scotland Yard Report regarding the raid on my house and arrest me on 23 September 1998." The applicants contend that if "the document in in the respondent's possession, the applicant is of the view the Scottland Yard Report contains information that relates to the ASIO's ASA namely will support the assertion the first applicant's arrest in the UK was not related to any Terrorist activities." Material before the Director-General relevant to his adverse security assessment decision in relation to the first applicant is already broadly covered by the category E2 formulation, reproduced at [15] above, which the respondents agree to discover. The applicants have not shown this proposed category to be relevant to the issues arising on the pleadings and accordingly I refuse to order discovery of this proposed category. 35 Proposed category E1 is "All documents relied upon by the Minister of Home Affairs in respect of determining the visa refusals of each of the applicants." I would refuse discovery by reference to this proposed category since only the first applicant's protection visa application has been determined and the material relevant to the validity of that decision is included in the respondent's agreed category A7, set out at [15] above. It does not appear that this category remains in contention as the applicants note the respondents' consent to the discovery of the documents in category A7. 36 Proposed category E2 is in the following terms: "All documents relied upon in respect of supporting and determining the adverse security risk assessments of [the first applicant]." The applicants contend that they seek "ALL material before the third respondent in making his decision (whether that material was considered or not) to issue an adverse security assessment in relation to the first applicant dated 23 April 2018." 37 I consider that the relevant material would be sufficiently covered by the respondents' reformulation of category E2 as set out at [15] above, the respondents having confirmed that that category would also include the documents referred to in the applicants' proposed categories D1 to D178. 38 For these reasons I made the orders for discovery in the categories in Annexure 1 to the respondents' proposed short minutes of order. 39 Any issue of privilege or public interest immunity is to be the subject of directions for the filing of evidence and short written submissions, as provided for in orders I make. 40 Costs are reserved. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Plaintiff S111A/2018 v Minister for Home Affairs

At a glance

Court

Decision date

Before

Source

Judgment (3 paragraphs)

Parties

Legislation Cited (2)

Cited By (3)