Federal Court of Australia Abramov v Minister for Foreign Affairs [2022] FCA 1085 File number(s): VID 335 of 2022 Judgment of: KENNY J Date of judgment: 13 September 2022 Catchwords: PRACTICE AND PROCEDURE – Timetabling orders Legislation: Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) List 2014 (Cth) Autonomous Sanctions Regulations 2011 (Cth) Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) Amendment (No 11) Instrument 2022 (Cth) Cases cited: Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 12 September 2022 Counsel for the Applicant: Mr R Merkel KC, with Mr S Rajanayagam and Mr J Maxwell Solicitor for the Applicant: Levitt Robinson Solicitors Counsel for the Respondent: Mr P D Herzfeld SC with Mr B Lim Solicitor for the Respondent: Australian Government Solicitor ORDERS VID 335 of 2022 BETWEEN: ALEXANDER ABRAMOV Applicant AND: MINISTER FOR FOREIGN AFFAIRS Respondent order made by: KENNY J DATE OF ORDER: 13 SEPTEMBER 2022 THE COURT ORDERS THAT: 1. Order 9 of the Orders made on 5 August 2022 be vacated. 2. The matter be fixed for hearing in the week of 24 October 2022. 3. The parties confer in the week of 26 September 2022 about a suitable timetable to ready the matter for a hearing on a date in the week of 24 October 2022. 4. By 9:30 am on 30 September 2022 the parties email the associates to Justice Kenny with a minute of orders setting out a timetable to have the matter ready for hearing on a day in the week of 24 October 2022. 5. There be liberty to apply on reasonable notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KENNY J 1 The applicant has sought judicial review of a decision made by the Minister for Foreign Affairs on 7 April 2022. This decision is said to have been made pursuant to s 2 of Schedule 1 to the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) Amendment (No 11) Instrument 2022 (Cth), to amend the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) List 2014 (Cth), to : (a) designate the applicant as a 'designated person' for Russia; and (b) declare the applicant for the purpose of preventing him from travelling to, entering or remaining in Australia. 2 At yesterday afternoon's case management hearing, the parties argued for competing directions based on the identification of different issues. Usually contests such as this can be resolved at the hearing itself. This is an exception, largely because the parties' positions reflected competing interpretations of the effect of the applicant's submissions in support of his judicial review (applicant's judicial review submissions). In substance, at the case management hearing the applicant argued that nothing had occurred that justified the vacation of the hearing of the matter provisionally set down for 29 and 30 September 2022. The applicant sought timetabling orders requiring the respondent to file submissions and any affidavit evidence by 23 September 2022, and the applicant to file reply submission by 26 September 2022. The respondent Minster's position was that her Department anticipated that it would "be in a position to advise the applicant of the outcome of his application for revocation made pursuant to reg 11 of the Autonomous Sanctions Regulations 2011 (Cth) by 26 September 2022", a brief having been provided to the respondent Minister's office on 12 September 2022. In this circumstance, the respondent submitted that the most efficient use of resources was to vacate the provisional listing and make fresh timetabling orders, which it was accepted might result in a hearing at the end of October 2022. 3 On the one hand, Mr Merkel KC, senior counsel for the applicant submitted that the applicant had completed necessary steps to allow the final hearing to proceed on the dates provisionally fixed for that purpose. This was a reference, amongst other things, to the fact that the applicant had filed the applicant's judicial review submissions (consisting of some 20 pages), a 287-page affidavit and a 7-page affidavit both sworn by the solicitor for the applicant, and a 320-page affidavit sworn by the applicant himself. These documents were all filed yesterday morning. The applicant emphasised that the power that the Minister had set out to exercise had significant public interest ramifications, a consideration favouring an efficient and speedy hearing. Further, senior counsel for the applicant submitted that "the issues in the present case, as outlined in the submissions … are entirely disparate and separate to those that will arise if there is another proceeding" (subject to "one qualification"). The reference to "another proceeding" was a reference to the possibility there might be another proceeding following the decision that is yet to be made regarding the applicant's application for the revocation of the decision under review in this proceeding (revocation application). Senior counsel submitted that this was not a case "where there is a pending proceeding with overlapping issues or even a case where there is likely to be a proceeding with overlapping issues". 4 The "one qualification" in terms of possible overlap with any future proceeding concerned, in the applicant's submission, "the proper construction of the regulation and the nexus that it required with the war in the Ukraine and the functions and activities relied upon", although it was said that this was unlikely to present a difficulty given that the present case involves a decision "on the basis of a very sparse view of the facts … versus an extremely comprehensive and detailed view of the facts in the situation concerning the revocation application". Mr Merkel KC emphasised that the decision under review had been operative since 7 April this year, and that the interests of justice dictated that the hearing at the end of the month proceed. 5 Referring to the applicant's affidavit material, his senior counsel submitted that the applicant relied on decisions to the effect that "if a decision-maker proceeds on an erroneous view of the facts or fails to comprehend the facts or misconceives them, that is an error going to jurisdiction". He affirmed that the applicant was not contesting the merits of the challenged decision. Mr Merkel KC said: Not only have we gone into that at great length in a way that won't surprise the Minister because that material plus other material has been put before the Minister on the revocation application, so there's nothing new that's occurring here ... He emphasised that the decision on the applicant's revocation application will be "based upon the facts and circumstances in existence as of the date of the decision and it cannot undo the harm that has been done and is continuing that led to the issue of the original proceeding". He noted that the outcome of the revocation application was unknown, as was the time when it would be made. 6 Senior counsel for the Minister, Mr Herzfeld SC, submitted that the matter should not proceed before a decision on the applicant's revocation application had been made because: As Mr Merkel conceded in his address to your Honour, th[e] factual material [proposed to be relied on in the current proceeding] overlaps very substantially with the factual material which has been put before the Minister on the revocation application, and so on that revocation application, the Minister will be addressing the very same factual matters which these submissions addressed to your Honour assert involve factual errors by the Minister when making the original decision. 7 Mr Herzfeld SC illustrated this point by reference to [25], and [29] and following, and [35] and following of the submissions that had been filed on the applicant's behalf earlier in the day. Senior counsel for the Minister noted that paragraphs 25 and 29 commenced with the proposition that the Minister's decision could be impugned because the Minister reached the requisite state of satisfaction based on erroneous findings of fact. Senior counsel noted that the applicant relied on various authorities for this proposition, including Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365 at 370, 373. Paragraph 35 centred on an unreasonableness challenge also referrable to what were said by the applicant to be factual errors. In the Minister's submission, these circumstances indicated that it would be more efficient for there to be concurrently hearing of the present judicial review application and any challenge that the applicant might make to the decision on the revocation application. 8 Furthermore, so Mr Herzfeld submitted, there would be "acute problems if the hearing ... of the challenge to the original decision occurs on 29 and 30 September" because, on the applicant's proposed timetable, on 23 September 2022 the Minister would be required to address in written submissions the factual matters that have been raised by the applicant in his submissions as filed; and the Minister would be required to do so "at the very same time as the Minister is still deciding what to make of these factual issues as part of the revocation application, and yet that will occur in a context where the court is not at that stage reviewing the Minister's decision-making on the revocation application". Senior counsel for the Minister urged that there was "a real prospect of a scrambling up of the processes in a problematic way". 9 For example, the Minister will be required to state a position on a question of fact in submissions before the Court, before making a determination on those same facts in relation to the revocation decision. Mr Herzfeld posited that this could lead to (for example) a question of apprehended bias if the decision on the facts turns out to be the same for both decisions. Moreover, so Mr Herzfeld submitted, whether the applicant's submissions about erroneous factual findings were legally correct (which was not accepted), the Minister "should not be hobbled in [her] defence … by being confined only to a legal argument". 10 Mr Herzfeld SC contended that none of these problems were speculative, but rather they arose because "the revocation process is presently on foot". As Mr Herzfeld SC put it: [T]he problems occur now because the revocation process is presently on foot. We will have to make submissions by the factual matters now, in parallel with the revocation process, and on the presently expected timetable, that means we will be making submissions on behalf of the Minister about factual matters before the Minister has made the decision based on those factual matters in the revocation application. And further, now, we will have to seek instructions, potentially, about those factual matters, while that decision-making process is incomplete. So these are problems that occur now, but are not just speculative problems. 11 Senior counsel for the Minister further submitted that the question of urgency should be assessed on the basis that if the revocation decision involved the revocation of the decision impugned in this proceeding, then the urgency of the current proceedings would dissipate and the urgency (if decided against the applicant) would shift to the new decision. He also referred to the fact that the applicant's delay in providing his material to the Minister had contributed to the fact that a decision on the revocation application had not yet been made –a proposition disputed by the applicant in reply. He submitted that, when account was taken of the volume of material before the Court in these proceedings and the issues that had been raised, it was unlikely that judgment could be delivered in this proceeding prior to a decision on the revocation application. 12 In response to the central issue raised by senior counsel for the Minister, senior counsel for the applicant emphasised that the decision at issue in this proceeding would be necessarily different to that in any prospective decision; that there could be no overlap causing difficulties of the kind to which the Minister referred; that the issues arising with respect to the decision impugned here would be different to those arising in any further proceeding; that the Court might control the conduct of the matter to avoid the risks to which the Minister referred (as for example by hearing argument on the grounds that did not raise these suggested difficulties). In substance, he submitted that nothing had changed to justify not proceeding with a hearing on the dates that had been provisionally set, whilst the burden of the challenged decision remained on the applicant. 13 Having considered the matter, and acknowledging that there was merit on both sides, it seems to me that the preferable course is to vacate Order 9 of the Orders made on 5 August 2022, which provisionally fixed hearing of this matter for the end of September 2022 and in its place to make an order that this matter be fixed for hearing in the week commencing 24 October 2022. I would invite the parties to confer about the timetable to have the matter ready for a hearing in that week. 14 It must be borne in mind, so it seems to me, that the decision made on 7 April 2022 and any further decision that the Minister makes following the applicant's revocation application has been and will be made under the same relatively confined legislative regime. This means that the same or much same questions are likely to arise for any new decision as arose when making the existing decision. It does not follow, of course, that the analysis of these issues and the outcome of this analysis will be the same in each case. Instead, the fact that a subsequent decision is likely to be made within the same legislative framework in respect of the same person means that the same or very similar questions will arise for determination. Consistently with this, senior counsel for the applicant apparently accepted that there was indeed some overlap between the material that the applicant had given the Minister in support of his revocation application and the material in the affidavits that have been filed on his behalf in this matter. It is, moreover, apparent that the applicant takes issue with some matters of fact on the basis that such factual errors can be relied on to impugn the decision of 7 April 2022. Taking these matters into account, I accept that, as Mr Herzfeld SC submitted, there may well be serious difficulties of the kind to which he referred if the current timetable, with a hearing on 29 and 30 September, were maintained. In these circumstances too, I accept that it is likely to be more efficient to hear the challenge to the present decision and any further decision on the revocation application concurrently. I am not persuaded that the Court could readily and efficiently avoid these difficulties in the way outlined by senior counsel for the applicant. The risk of "scrambling up of the processes in a problematic way" is outweighed by the relatively short postponement of the hearing until the end of October 2022. 15 It follows that I accept that these difficulties arise because consideration of the applicant's revocation application is ongoing at least up to or around 26 September 2022. Further, although not a cause for blame, because there were presumably good reason for the delay in providing the Minister with all the material on which the applicant relied for his revocation application, that delay has, it seems, contributed to the critical slippage in the timetable. 16 It is, for these reasons, that I would make the following orders: (1) Order 9 of the Orders made on 5 August 2022 be vacated. (2) The matter be fixed for hearing in the week of 24 October 2022. (3) The parties confer in the week of 26 September 2022 about a suitable timetable to ready the matter for a hearing on a date in the week of 24 October 2022. (4) By 9:30 am on 30 September 2022 the parties email the associates to Justice Kenny with a minute of orders setting out a timetable to have the matter ready for hearing on a day in the week of 24 October 2022. (5) There be liberty to apply on reasonable notice. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny. Associate: Dated: 13 September 2022