Federal Court of Australia AIX20 v Minister for Home Affairs [2020] FCA 1640 File number(s): VID 41 of 2020 Judgment of: O'CALLAGHAN J Date of judgment: 11 November 2020 Catchwords: PRACTICE AND PROCEDURE – application in judicial review proceeding for an order that Minister answer interrogatories – where applicant claims Minister failed to have regard to mandatory considerations – whether any answer given to proposed interrogatories could be relevant to that contention Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 48A, 48B, 189, 197C, 198, 501(3)(b), 501(6) Cases cited: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Bushell v Secretary of State for the Environment [1981] AC 75 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of last submission: 16 October 2020 Date of hearing: Determined on the papers Counsel for the Applicant: Mr E Nekvapil Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr CJ Tran Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent did not appear ORDERS VID 41 of 2020 BETWEEN: AIX20 Applicant AND: THE MINISTER FOR HOME AFFAIRS First Respondent THE DIRECTOR GENERAL OF SECURITY Second Respondent order made by: O'CALLAGHAN J DATE OF ORDER: 11 November 2020 THE COURT ORDERS THAT: 1. The application by the applicant that the first respondent provide answers to interrogatories be dismissed. 2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J: 1 The applicant seeks an order that the first respondent (the Minister) answer interrogatories in the form attached to these reasons (see Annexure A). Before determining that application, it is necessary to place it in context. 2 The applicant is from Iraq. He arrived in Australia in October 2012. 3 In 2017, he was granted a Class XD Subclass 785 Temporary Protection visa on the basis that he engaged Australia's protection obligations under s 36(2)(a) of the Migration Act 1958 (the Act). His claims, which were found to give rise to protection obligations, were that he had been detained and tortured by American forces in Iraq between 2004 and 2008, after his neighbour falsely accused him of being a terrorist. 4 In October 2019, the Australian Security Intelligence Organisation made an Adverse Security Assessment in relation to the applicant and provided it to the Department of Home Affairs (the Department). The Director-General of Security is the second respondent. 5 On 5 December 2019, the Minister cancelled the applicant's visa under s 501(3)(b) of the Act, because he reasonably suspected that the applicant did not pass the character test in s 501(6) of the Act (because of the Adverse Security Assessment), and because he was satisfied that the cancellation was in the national interest. The applicant has been in immigration detention since around that time. 6 In the Minister's reasons for the cancellation decision, he accepted that Australia owed non-refoulement obligations in respect of the applicant. He also accepted that if the applicant were 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 as a Sunni Muslim and his history of being detained by US forces on allegations of undertaking terrorist activities. 7 The Minister accepted that cancellation would prevent the applicant from making an application for another visa, other than a protection visa or a Bridging R visa, and that each of those was barred unless the applicant were invited to apply or the Minister determined under s 48B of the Act that s 48A did not apply. The Minister noted that he was aware that the statutory consequence of visa cancellation was that, as an unlawful non-citizen, the applicant 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. He also noted his awareness that s 197C made it irrelevant whether Australia had non-refoulement obligations in respect of an unlawful non-citizen. He said that he was mindful that, even if he cancelled the applicant's visa, he had a personal, non-compellable power under s 195A of the Act to grant the applicant another visa if he thought it was in the public interest to do so, and that if he did not exercise that power, the applicant would be liable to removal from Australia, including to Iraq, as soon as reasonably practicable in accordance with s 197C of the Act. 8 The Minister said that he had carefully weighed the real chance of serious harm to the applicant in Iraq and the existence of non-refoulement obligations against the seriousness of the risk the applicant posed to Australia's national security. He noted the applicant's history of poor mental health when he was previously in immigration detention, and concluded that a further period of detention would be likely to have a detrimental impact on the applicant's mental health. 9 Ultimately, the Minister concluded that the considerations tending against cancellation were outweighed by the national interest considerations. 10 By a further amended originating application dated 21 August 2020, the applicant seeks, among other things, an order that the Minister's decision to cancel his visa be quashed. The proposed interrogatories relate to ground two in that application, which reads as follows: In making the Cancellation Decision, the First Respondent failed to have proper regard to: a) the legal consequences of that decision. b) the prospect of the Applicant being detained indefinitely as a consequence of that decision. c) the impact of that decision on the Applicant's mental health. Particulars Ground 2(a) I. There is no real prospect that the Applicant will be given a further visa under the Migration Act, in light of the Adverse Security Assessment, and the reasoning in [11]-[20] of the First Respondent's statement of reasons for the Cancellation Decision. See BAL19 v Minister for Home Affairs [2019] FCA 2189 at [30] to [55]. II. Further, the First Respondent did not give any consideration to the consequences for Australia – including in respect of the expectations of the Australian community – of breaching Australia's non-refoulement obligations. Ground 2(b) I. In fact, no person (Person) has been removed from Australia to a country (the Other Country), where the First Respondent (either personally or by a delegate) has decided under s 501 of the Migration Act to cancel a visa that was granted to the Person on the basis that the Person satisfied the criterion in s 36(2)(a) of the Migration Act 1958 (Cth), because the Person was outside of that Other Country and, owing to a well-founded fear of persecution, was unable or unwilling to avail himself or herself of the protection of that Other Country. II. By inductive inference, it is very unlikely that the Applicant – being such a Person in respect of Iraq – will be removed to Iraq. III. There is no real prospect that the Applicant will be given a further visa under the Migration Act: see particulars to ground 2(a), above. It follows that it is very likely that the Applicant will remain in indefinite detention. Ground 2(c) I. It is very likely that the Applicant will remain in indefinite detention: see particulars to ground 2(b), above. II. In light of the information the First Respondent had about the Applicant's mental health, the First Respondent did not give proper consideration to the consequences for the Applicant's mental health if he were to remain in indefinite detention. III. In any event, the First Respondent did not give adequate consideration to the consequences for the Applicant's mental health of being detained unless and until he is removed to Iraq, and then of being removed to Iraq. 11 The applicant's solicitor made these written submissions in support of the application to administer the interrogatories: The questions are precisely directed to eliciting facts relevant to the question whether persons like the Applicant — who have Iraqi nationality, have had their visa cancelled under s 501, and had been found to be owed protection obligations by Australia — have been in fact removed from Australia, to Iraq or otherwise, during the past eight years. The answers to those questions are capable of forming the basis for an inference that in fact persons in the Applicant's situation are not removed from Australia to Iraq, even though in law s 197C of the Act removes non-refoulement obligations as a reason to not comply with s 198. … Ground 2(b) in the Amended Originating Application states that it is highly unlikely the Applicant will be removed to Iraq, having regard to the practice in relation to persons who engage Australia's protection obligations. Ground 2(b) posits that — since there is no real prospect that the Applicant will be either removed to Iraq, or granted a visa (see ground 2(a)) — it is highly likely in fact that the Applicant will remain in indefinite detention. The First Respondent did not consider this potential outcome in the Cancellation Decision, because he relied on an assumption that the legal effect of s 197C would be followed in fact. Ground 2(c) states that, in light of the information the First Respondent had about the Applicant's mental health, the First Respondent did not give proper consideration to the consequences for the Applicant's mental health if he were to remain in indefinite detention. This ground is similarly premised on the likelihood in fact of indefinite detention, even if s 197C in law would require removal to Iraq. 12 Counsel for the Minister opposed the application, on these grounds. As drafted, ground two contends that the first respondent 'failed to have proper regard to' certain matters. Whether that ground of review is established must depend on the material before the decision-maker: '[o]rdinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the Court, apart from evidence of what was before the decision-maker at the time of the decision' [citing Chandra v Webber (2010) 187 FCR 31 at 43 [40]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 562 [442]]. Other evidence would only be admissible if it were contended that the decision-maker had a duty to obtain more information, the evidence then being adduced to prove that information which ought to have been obtained [citing Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]]. Such a duty is not alleged in this case, and there is no evidence or suggestion that the answers sought by interrogatory reflect information before the first respondent in making the decision. That is one answer to the application for interrogatories: the answers would serve no purpose and would be inadmissible so the first respondent should not be required to answer them. Another answer is to recall that the question for this Court on judicial review is not whether the first respondent's decision was factually right or wrong: that trespasses into the merits. The question for this Court will be whether the first respondent made a decision affected by jurisdictional error. That will be so where he makes a decision otherwise than upon a proper understanding of the law [citing, eg, Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 438 [19]]. Here, the applicant's claim is put not on the basis that the first respondent failed to appreciate the legal consequences of his decision, it is that the factual consequences will be inconsistent with the legal consequences … The kind of jurisdictional error said to have been committed is not at all apparent, but it is plain that such an argument can have nothing to do with ground 2(a) in the further amended application. Turning then to grounds 2(b) and (c), there was no claim by the applicant to the first respondent that he would be indefinitely detained, or about the period in which he was to be detained. So unless a duty to inquire is alleged and established, which it has not been because there would be no proper basis for it at the moment, then there is no prospect that answers to the interrogatories sought would have any bearing on the validity of the first respondent's decision. The lack of utility of the interrogatories can be shown in this way. Assume that the applicant proves what he sets out to prove: no person has ever been refouled to Iraq contrary to the law in s 197C. What follows? • Nothing in the summary of the first respondent's reasons [provided elsewhere in the Minister's submissions] would be wrong or inaccurate: it accurately states the legal operation of the Act. So, the cases on exercising power upon a proper understanding of the law do not avail the applicant. • Obtaining facts to prove this assumed position cannot be justified on the existing case law about having a proper understanding of the legal operation of the Act, because this ground proceeds on the avowed position that that legal operation is not being adhered to. • Rather, the assumed fact would only take on significance if the applicant had submitted it for consideration by the first respondent (he did not) or it is alleged that the first respondent ought to have found out that factual position (why?). • Otherwise, 'it is not permissible to conflate evidence with mandatory considerations' and 'evidence [would be] inadmissible before the [Court] to contradict the material on which the Minister made his findings of fact' if the claim proceeds not on a basis of a misunderstanding of the law but upon a misunderstanding of the facts [citing Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 at 35 [50]-[51]]. … Nor is it enough to point to the fact that ground 2 exists without having been struck out. In deciding whether to order discovery or interrogatories, the Court is entitled to examine whether there is any potential substance to how the claim would be put, lest a party bootstrap itself into discovery and interrogatories [citing by way of comparison SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609]. The interrogatories serve no purpose and would put the first respondent to the time and expense of answering them for no conceivable reason. 13 In reply, counsel for the applicant made these submissions: The essence of the Minister's written submissions opposing interrogatories is that the interrogatories ask about information that was not before the Minister. There are three answers to that proposition. First, the Minister exercised the power to cancel the Applicant's visa in his capacity as a minister, accountable to the Commonwealth Parliament for the discharge of his ministerial duties and for the Department of Home Affairs, for which he is responsible [citing Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215 at 239 [81]]. As such, the collective knowledge of his Department is treated by the law as his [ibid at 239 [81]-[83]]. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24], Brennan J observed that 'the Minister cannot be regarded in his exercise of the power as unaware of information possessed by his Department', quoting the following observation by Lord Diplock in Bushell v Secretary of State for the Environment [[1981] AC 75 at 95]: To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise. Second, the Minister made the decision personally. When doing so, he should not be treated as having suffered a form of selective amnesia or tunnel vision. Given the Minister's central role in character cancellation decisions, non-compellable powers to grant visas to persons in immigration detention and the Commonwealth's policy and practice in respect of Australia's non-refoulement obligations, it is open to the Court to infer that he had personal knowledge whether refugees generally, and Iraqi refugees in particular, had been refouled following cancellation, and if so how many. It is not necessary for the Court, at this stage, to determine whether it will draw such an inference. That such an inference is open is sufficient to make the questions relevant. Third, and relatedly, it is not in any event necessary that the specific answers to the questions correlate precisely to the Minister's knowledge. The interrogatories should be permitted if the Court is satisfied that the questions are capable of producing answers that support an inference as to the Minister's knowledge about the likelihood of the Applicant being refouled. Of course, the questions are about things that have occurred in respect of cancellations in the past, and the posited mandatory consideration concerns the likelihood of the Applicant being refouled in the future. But those questions are capable of producing answers that support an inference that the Minister was aware no (or very few) persons whose situation shared common characteristics (as articulated in the interrogatories) with that of the Applicant have in fact been refouled. If the Court were to infer that the Minister had that knowledge (either in fact or through his Department), that would support the Applicant's argument that the Minister had to consider the future prospect of indefinite detention for the Applicant. As indicated in particular (ii) to ground 2(b), inductive inferences about the likely future are formed on the basis of known facts about the past. As Brennan J observed in Peko-Wallsend [(1986) 162 CLR 24 at 61]: A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered. The prospect of indefinite detention by the executive is a matter of substance. It is fanciful that the Minister was not aware of the salient facts — to which the interrogatories are directed — that give rise to a real prospect that the Applicant will spend the remainder of his life in detention, without ever having been charged or convicted of a crime. Finally, the Minister's submission that he could not be expected to know about the prospect of the Applicant being indefinitely detained because the Applicant did not claim that would occur is unsound. First, the legal and practical consequences of the refusal, in terms of the Applicant's position, was a matter that the Minister was uniquely placed to understand in terms of law, policy and the facts known by the Minister and his Department (and not by the Applicant). And second, the Applicant was not given (or required to be given) any opportunity to make submissions before the decision was made. 14 It is not necessary to deal with each of these competing submissions. In my view, the Minister correctly submits that even if the interrogatories were answered in a way that the applicant anticipates or hopes for – that is, answers were provided that would support a submission that, contrary to s 197C of the Act, no person has ever been refouled to Iraq – that evidence would be inadmissible (and would serve no purpose), because whether or not ground two is made out depends on the material that was before the Minister. As Weinberg J said in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 562 [442] (a passage quoted in the Minister's submissions), "[o]rdinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the Court, apart from evidence of what was before the decision-maker at the time of the decision". Absent any claim that the Minister had a duty to obtain more information, that, it seems to me, is the end of the matter. 15 I do not accept the applicant's submission that, because the Minister exercised the power to cancel the applicant's visa in his capacity as a minister, accountable to the Commonwealth Parliament for the discharge of his ministerial duties and responsible for the Department of Home Affairs, and because "the collective knowledge of his Department is treated by the law as his", I can infer that he had "personal knowledge whether refugees generally, and Iraqi refugees in particular, had been refouled following cancellation, and if so how many". The cases relied on – Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215 at 239 [81]-[83] (Kenny J), Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 61, 66 (Brennan J) and Bushell v Secretary of State for the Environment [1981] AC 75 at 95 (Lord Diplock) – do not, with respect, establish that proposition. 16 The application will accordingly be dismissed, with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate: Dated: 11 November 2020 ANNEXURE A The attached document [see Annexure B] was released by the Department of Home Affairs under the Freedom of Information Act 1982 (Cth). Please refer to Table 11, which shows the number of persons whose visas were cancelled under s 501 of the Migration Act 1958 (Cth) (the Migration Act) and who were removed involuntarily. It is sorted in rows, by citizenship, for 28 countries (and stateless persons). Please answer the following interrogatories. (1) Between 1 July 2012 and 30 April 2020, what is the total number of persons: (a) whose visas were cancelled under s 501 of the Migration Act? (b) whose visas were cancelled under s 501 of the Migration Act, and who were then removed from Australia (voluntarily or involuntarily)? (c) with Iraqi nationality, whose visas were cancelled under s 501 of the Migration Act? (d) with Iraqi nationality, whose visas were cancelled under s 501 of the Migration Act, and who were then removed from Australia (voluntarily or involuntarily)? (2) Is it correct that no Iraqi citizen, whose visa was cancelled under s 501 of the Migration Act, was involuntarily removed in any of the years (starting 1 July) 2012–2013, 2013–2014, 2014–2015, 2015–2016, 2018–2019 or 2019 – (April) 2020? (3) How many Iraqi citizens, whose visas were cancelled under s 501, were involuntarily removed in 2016–2017? (4) How many Iraqi citizens, whose visas were cancelled under s 501, were involuntarily removed in 2017–2018? (5) What is the total number of Iraqi citizens, whose visas were cancelled under s 501, that were involuntarily removed in the period 1 July 2012 – 30 April 2020? For the purpose of the following questions 6 and 7, Iraqi citizens whose visas were cancelled under s 501 and who were involuntarily removed in the period 1 July 2012 – 30 April 2020 are referred to as "the Relevant Iraqi Citizens". (6) How many of the Relevant Iraqi Citizens were involuntarily removed to Iraq? (7) If the answer to 5 [sic] is >0, how many Relevant Iraqi Citizens involuntarily removed to Iraq had, at the time of removal: (a) been found by an officer of the Commonwealth to satisfy the criteria in s 36(2)(a) or (aa) of the Migration Act? (b) not, subsequently to that finding (but before the time of removal), been found by an officer of the Commonwealth to not satisfy the criteria in s 36(2)(a) or (aa) of the Migration Act? Table 11 states that 163 individuals whose visas had been cancelled under s 501 were involuntarily removed between 1 July 2012 and 30 April 2020. The following questions 8 and 9 are asked by reference to that set of 163 individuals. (8) Is it correct that, between 1 July 2012 and 30 April 2020, the 163 individuals referred to in Table 11 were the only individuals whose visas had been cancelled under s 501 of the Migration Act who were involuntarily removed from Australia? (9) How many of the 163 individuals referred to in Table 11 meet the criteria in both (a) and (b) below: (a) at the time of removal, the individual had: (i) been found by an officer of the Commonwealth to satisfy the criteria in s 36(2)(a) or (aa) of the Migration Act? (ii) not, subsequently to that finding (but before the time of removal), been found by an officer of the Commonwealth to not satisfy the criteria in s 36(2)(a) or (aa) of the Migration Act? (b) the individual was removed to their country of nationality or, if the individual did not have a nationality, the individual was returned to their country of former habitual residence. ANNEXURE B