Federal Court. Applicant could not be removed from Australia, due to effect of NZYQ. In the context of a refusal of a protection visa under s 501(1), Minister submitted to Tribunal that “that there were no third country removal options for the Applicant”. On judicial review, Applicant argued that was not true. Does Applicant have a proper basis to seek discovery of what information was available to the Minister concerning the impending third country reception arrangement with the Republic of Nauru at the time of the Tribunal hearing?
The Federal Court (FCA) said as follows:
1 On 14 November 2024, a delegate of the Minister for Immigration and Multicultural Affairs (Minister) decided to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant the applicant a Protection (Class XA) Subclass 866 visa (protection visa) on the basis that the applicant did not pass the character test. The applicant was released from immigration detention into the community on a Subclass 070 – Bridging (Removal Pending) Visa (Bridging Visa R) (BVR). On the same day, the applicant applied to the Administrative Review Tribunal (Tribunal) for a review of the delegate’s decision.
2 On 22 January 2025, the Tribunal held a hearing in relation to the review of the delegate’s decision...
3 On 6 February 2025, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
4 On 13 March 2025, the applicant applied to the Federal Court seeking judicial review of the Tribunal’s decision...
6 On 4 July 2025, the applicant filed an interlocutory application seeking discovery from the Minister (discovery application).
13 In making its decision, the Tribunal was required to consider the legal consequences of its decision for the applicant, including having regard to Australia’s non-refoulement obligations (cl 9.1 of Direction No 110 made under s 499 of the Act). The Tribunal noted that, if the protection visa was not granted, there are a range of potential legal consequences, including the likelihood of the applicant becoming subject to detention and/or removal as an unlawful non-citizen (at [120]). The Tribunal observed that, as the applicant is the subject of a protection finding made by a delegate of the Minister on 22 November 2024, he has already been granted a BVR and released from immigration detention by the Department and he will not become unlawful as a result of the refusal. Therefore, the applicant will remain in the community following the Tribunal’s decision, either as the holder of a BVR or as the holder of the protection visa (at [123]).
14 At the Tribunal hearing, the applicant submitted and the Tribunal accepted that the applicant may become subject to removal to a third country under provisions enacted by the Commonwealth following the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (NZYQ) (at [134]). In that regard, it can be noted that the Commonwealth enacted the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) which introduced a new regime for holders of BVR visas, and subsequently enacted ss 76AAA and 198AHB by the Migration Amendment Act 2024 (Cth), which came into force on 5 December 2024...
15 At the Tribunal hearing, the applicant submitted that, while it is unclear whether a third country will become available to receive the applicant, it is fanciful to imagine that any potential third country will be a well-resourced, industrialised country with legal protections for persons transferred there. The applicant submitted that there are no guaranteed minimum standards of treatment upon removal to a third country and conditions in the country are likely to be highly oppressive and include detention (at [135]).
16 In response, the Minister submitted to the Tribunal that “that there were no third country removal options for the Applicant” (at [136]). That submission assumes significance on the discovery application. On the basis of that submission, the Tribunal reasoned that it was not possible to assess the level of legal protections or conditions that persons removed to a third country might encounter, as no such country had been identified (at [138]).
17 In making its decision, the Tribunal was also required to consider the extent to which the applicant would face an impediment, or impediments, in establishing himself and maintaining basic living standards if removed from Australia to his home country in the context of what is generally available to other citizens of that country (cl 9.2 of Direction No 110 made under s 499 of the Act). The Tribunal observed that, as the applicant is subject to a protection finding in respect of his home country, South Sudan, he cannot be removed to that country. The Tribunal also concluded that there is not any real likelihood that the applicant’s protection finding will be set aside pursuant to s 197D as a consequence of the Tribunal’s decision. Relevantly, the Tribunal also concluded that “as there is no real prospect of the Applicant’s removal to any identifiable country in the reasonably foreseeable future, this consideration should be regarded as neutral” (at [143]).
18 By ground 3 of the application for judicial review, the applicant alleges as follows:
The first respondent breached his obligation under s 56(1) of the Administrative Review Tribunal Act 2024 (ART Act) to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review and achieve the objective in s 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived the Tribunal of the ability to consider matters it was required to consider.
Particulars
a. The first respondent breached his obligation under s 56(1) of the ART Act to use his best endeavours to assist the Tribunal to make the correct or preferable decision in the review and achieve the objective in s 9 of the ART Act, which materially affected the conduct of the review by the Tribunal and deprived the Tribunal of the ability to consider matters it was required to consider.
b. The first respondent told the Tribunal that “her instructions were that there were no third country removal options for the Applicant.”: Reason[s], [136].
c. At Reasons [138] the Tribunal accepted that removal to a third country was possible but “[a]s no such country has been identified, it is not possible to assess the level of legal protections or conditions that persons removed to any such country might encounter.”
d. On 16 February 2025, 10 days after the Tribunal’s decision, the Australian Government announced a deal with the Republic of Nauru to receive the removal of three persons whose visas had been cancelled on character grounds to Nauru, which necessarily required there to be a third country reception arrangement with Nauru under s 198AHB of the Act.
e. It can be inferred that the first respondent was aware of the existing or impending arrangement with Nauru to accept the removal of persons in the applicant’s position before the time of the Tribunal’s decision.
f. The submissions of the first respondent to the Tribunal gave the impression that there was no existing or impending arrangement with any third country to accept the removal of persons from Australia who could not be removed to their country of origin.
g. The failure of the first respondent to inform the Tribunal of the existing or impending arrangement with Nauru constituted a breach of s 56(1) of the ART Act.
h. But for the breach of s 56(1) of the ART Act, the Tribunal would have considered, and been required to consider, the extent of impediments that the applicant would face if removed to Nauru, and might not have weighed that consideration as “neutral”.
i. But for the breach of s 56(1) of the ART Act, the Tribunal would have needed to consider the prospect that the applicant may refuse to co-operate with removal to Nauru, if an invitation was made, and weigh the impact of detention in Australia as a consequence of that non co-operation.
j. The Tribunal was thereby prevented from properly considering the applicant’s submissions and/or properly assessing the considerations in the Ministerial Direction, resulting in jurisdictional error.
k. Further and alternatively, the applicant was denied procedural fairness, in that he could have made submissions about the specific impediments he would face on removal to Nauru if the prospect of removing persons in his position to Nauru had been disclosed.
19 As can be seen from the foregoing, the particulars to ground 3 refer to an announcement made by the Australian Government on 16 February 2025, 10 days after the Tribunal’s decision, of an arrangement reached with the Republic of Nauru under s 198AHB of the Act to receive the removal of three persons whose visas had been cancelled on character grounds.
20 On 2 June 2025, the reasons for decision of the Court in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 (TCXM) were made available publicly...
21 As can be seen, Moshinsky J found that the Department had been negotiating a third country reception arrangement with the Republic of Nauru since September 2024. Ultimately, the Minister reached an interim arrangement in relation to three individuals on 10 or 12 February 2025. At present, there is no evidence that, prior to the decision of the Tribunal, the Department had formulated or proposed that the interim arrangement (or any other arrangement) would apply to the applicant in this case.
22 By his discovery application, the applicant seeks documents that he contends are relevant to ground 3 of his application for judicial review. Relevantly, the applicant contends that the Minister was aware of the existing or impending arrangement with the Republic of Nauru to accept the removal of persons in the applicant’s position before the time of the Tribunal’s decision, but the Minister’s submissions to the Tribunal gave the impression that there was no existing or impending arrangement with any third country to accept the removal of persons from Australia who could not be removed to their country of origin.
Some of the questions to the FCA were as follows:
Question 1: Are the touchstones for discovery the tests of relevance and proportionality, as framed by r 20.11 of the Federal Court Rules 2011 (Cth) and the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth)?
Question 2: The Court’s Administrative and Constitutional Law and Human Rights Practice Note says at para 8.1: "Unless a party provides an acceptable justification, no discovery or interrogatories will be ordered in proceedings for administrative law cases and constitutional law cases". Is that "because the issues for determination in judicial review proceedings are usually determined on the basis of the materials that were before the person or body whose decision is being appealed or reviewed"?
Question 3: May discovery be ordered in administrative law cases where there is a foundation in evidence or in the pleadings to support such an application?
Question 4: Does the Applicant have a proper basis to seek discovery of what information was available to the Minister concerning the impending third country reception arrangement with the Republic of Nauru at the time of the Tribunal hearing?
The FCA answered those questions as follows: