QJMV v Minister for Home Affairs

1. In addition to the orders made by the Court on 10 November 2021: (a) On the basis of the substantive relief in orders 1 and 2 made on 10 November 2021, the absence of any necessary resolution of any other issue and the issues otherwise raised by the present application being moot, the application filed 11 January 2021 and amended on 23 March 2021 be otherwise dismissed. (b) The first respondent pay the costs of and incidental to the applicant's originating application up to the date of 10 November 2021 as agreed or assessed except for such costs otherwise covered by order 3 of the orders of the Court made on 10 November 2021. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 On 9 November 2021, the Full Court delivered reasons resolving in the applicant's favour grounds 5 and 5(a) of the application, in respect of which I had made a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) and which had been ordered to be heard with another appeal, CWY20, which raised the same issues: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20; and QJMV v Minister for Home Affairs [2021] FCAFC 195. 2 On 10 November 2021, the Court made orders consequential upon the Full Court's reasons, as follows: 1. The decision of the respondent dated 7 December 2020 pursuant to s 501A(2) of the Migration Act 1958 (Cth) be quashed. 2. The applicant be released from immigration detention forthwith. 3. The respondent pay the applicant's costs of and incidental to the determination of Grounds 5 and 5A by the Full Court of the Federal Court of Australia. 4. The proceeding be listed for case management hearing on a date to be fixed in February 2022 in consultation with the chambers of the Chief Justice. 3 Since that date the parties have been before me and have debated the subject matter of further orders. There should have been no debate. There is no debate about costs. The first respondent accepts that the Minister should pay the costs of the application up to 10 November 2021, in addition to the costs ordered to be paid by order 3 on 10 November 2021. There is also no debate about there being no issue that remains to be determined on the existing application. All questions are moot given orders 1 and 2 made on 10 November 2021. 4 What, then, has taken over three months to sort out? The applicant wishes to amend its application to begin a fresh case about matters that occurred after 10 November 2021 and seeks an interlocutory application for discovery and interrogatories. The decision it wishes to challenge relates to a notice purportedly received on 19 January 2022, of intention to consider cancellation of the applicant's visa again pursuant to s 501A(2) of the Migration Act 1958 (Cth), but now perhaps by a different Minister. 5 It is said that one reason for the application to amend rather than commence fresh proceedings is the question of expedition and avoidance of delay. The matter could and should have been resolved shortly after 10 November 2021 with the self-evident recognition that the balance of the issues in the proceeding were moot. While I say self-evident, the Court thought it appropriate to ensure that the parties were heard on this because of the importance of the matter to the applicant. 6 It is not appropriate to use the shell of an old action to commence fresh proceedings including against a new party when that proceeding has been resolved. The fresh proceedings could have been brought in mid-January, if not before. They should be brought now, if they are to be brought. This not merely a matter of form. Allowing an amendment can only foster potential procedural complexities which should not be allowed to cast a shadow over the legitimacy of the commencement of proceedings. 7 There is no reason why fresh proceedings could not have been commenced promptly and there is no reason why fresh proceedings could not be promptly commenced now. The respondents have indicated that were the amendments to be made, some discovery orders would be appropriate. There could be no basis for that view not being taken in relation to fresh proceedings. I do not propose to engage in the resolution of an interlocutory application that should be brought in fresh proceedings. There is objection to the interrogation of officers of the Commonwealth as put forward in the interlocutory application. I make no comment about that application for interrogatories, other than what follows. Early in this proceeding last year, I made an order by way of case management order after hearing the Minister that short interrogatories should be answered. An application for leave to appeal was filed with detailed arguments as to why it was inappropriate to order a Minister of the Crown to answer interrogatories. None of these matters had been put before me. On this basis, a judge of the Court dismissed the application for leave to appeal. 8 When those interrogatories were answered, the form of the answer was such as to raise real questions as to whether the order had been complied with. The form of answering an interrogatory which seeks knowledge from a person is not properly answered with the response: "I don't remember". A perusal of the relevant law in texts concerning practice and procedure, such as Bray on Discovery would elicit the responsibilities of the person interrogated to make all due enquiries and the appropriate character of the form of answer, that is based on knowledge, information and belief after all appropriate enquiries, in such a case as this including by Departmental and other staff. 9 This matter, if it requires expedition, should be given expedition. It could have been started months ago. It is not appropriate to add to a spent proceeding complaints which had their origins in actions or inactions by the respondents after the orders made by the Court which effectively determine the totality of the suit, whether in substantive relief or substantive relief leaving the balance of the matters inutile. Orders should made in the proceeding by reference to the fact that all remaining issues are moot. The complaints of the applicant concerning officers of the Commonwealth including an officer of the Commonwealth not presently a party should be made in separate proceedings. 10 I do not propose to burden the applicant with the costs of the matter since 10 November 2021. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.