Federal Court. Was it the Respondent, not the Hon Karen Andrews MP (the now former Minister), who had the responsibility to answer the interrogatories administered by the Registrar? Could Ms Andrews be compelled under Part 21 of the Federal Court Rules 2011 (Cth) to answer the interrogatories? Was Ms Andrews authorised under r 21.04(1) of the Rules to make an affidavit verifying her answers? Could Ms Andrews be compelled to attend before the court or a registrar for oral interrogation under r 21.05(b) of the Rules?
The then Minister for Home Affairs, the Hon Karen Andrews MP, personally cancelled the Applicant’s visa under s 501(3) of the Migration Act 1958 (Cth), after which the Applicant applied to the Federal Court (FCA) for judicial review of her decision. One of the grounds of review claimed that Ms Andrews “failed “...to give proper, genuine or realistic consideration to the merits of the Applicant’s case”.
On 4 July 2022, when Ms Andrews was no longer the Minister, Registrar Haag heard the Applicant’s first interlocutory application and then made orders requiring that the respondent answer the following interrogatories by 18 July 2022:
(a) On what date, and at what time, did you receive the brief (containing reasons which you signed on 9 December 2021) from your Department for the purpose of making the Decision you made or purportedly made pursuant to s 501(3) of the Migration Act to cancel the Applicant’s Class BS visa?
(b) At what time on 9 December 2021 did you make the Decision?
(c) How many minutes did your consideration (inclusive of reading time) of the Brief occupy, before you made the Decision?
(d) Did you read the entirety of the statement of reasons, which had been prepared by your Department and had been included in the Brief, before you made the Decision?
(e) How many minutes did your consideration (inclusive of reading time) of the statement of reasons occupy, before you made the Decision?
(f) Did you read the entirety of each of the attachments identified in the “Index of Relevant Material for [the Applicant]” in Attachment 2 of the Brief, before making the Decision?
The Respondent filed an affidavit affirmed by a solicitor employed by her department, Ms Booth, verifying answers to the interrogatories. That affidavit annexed a letter from the Respondent’s solicitor to Ms Andrews, requesting her assistance in answering the interrogatories. Ms Booth deposed that she spoke to Ms Andrews three days after the letter was sent, listened to her answers and wrote them down. Five of the answers were “I cannot recall” or analogues.
On 21 July 2022, the Applicant’s solicitor sent a letter to the Respondent’s solicitor, complaining that the answers were insufficient.
On 25 July 2022, the Applicant filed another interlocutory application, seeking: to orally interrogate Ms Andrews; in the alternative, for Ms Andrews to verify an affidavit with sufficient answers; in the further alternative, an order which eventually was abandoned.
On 18 October 2022, when the hearing of the second interlocutory application was already listed for 31 October 2022, the Respondent’s solicitor sent another letter to Ms Andrews saying, among other things, that she would be grateful if Ms Andrews could provide further answers, such as: “In relation to Interrogatory 1, the Department's records show that the brief and attachments were emailed to your office at 7 December 2021 at 11.30am. The Department's records also show that a hard copy of the brief was delivered to your office on 7 December 2021. Does this assist your recollection as to when you personally received the brief?”
On 31 October 2022, Snaden J heard the second interlocutory application, where the Applicant argued that “it was not open to Ms Andrews simply to not recall the matters that were asked of her. Similarly, it is said that it was not open to Ms Wellings Booth simply to pose to Ms Andrews the questions that arose and then passively record her answers to them. Instead, it is said that the obligation to make what the authorities describe as “all reasonable inquiries” imposed upon both she (or Ms Wellings Booth, on her behalf) and Ms Andrews obligations that here went undischarged”: at [22].
Some of the questions to the FCA were as follows:
Question 1: Was it the Respondent, not Ms Andrews, who had the responsibility to answer the interrogatories?
Question 2: Did the discharge of that responsibility required the making of "all reasonable inquiries that might be made to ascertain information sufficient to answer what was asked"?
Question 3: Could Ms Andrews be compelled under Part 21 of the Federal Court Rules 2011 (Cth) to answer interrogatories?
Question 4: Can it be said that Ms Andrews is not authorised under r 21.04(1) of the Rules to make an affidavit verifying her answers, as she is not a party?
Question 5: Could Ms Andrews be compelled to attend before the court or a registrar for oral interrogation under r 21.05(b) of the Rules?
Question 6: Can it be said that Ms Andrews was under no obligation to assist the Respondent, who could not compel Ms Andrews to give answers?
Question 7: Can it be said that, although the Respondent was under an obligation to make reasonable inquiries, it was not obliged to make all inquiries or inquiries that were inherently ambitious or exploratory?
Question 8: Should the Court compel further examination on the basis of Part 1 of the rules?
The FCA answered those questions as follows: