Federal Court. Can it be said that "interrogatories may be ordered in an 'appropriate case' according to the same principles that apply in considering whether to order discovery in judicial review proceedings"? Would "an unparticularised claim that there was a failure by the Minister to give proper, genuine and realistic consideration to [the applicant's case] support the interrogatories" sought? If not, would an adjournment of the interlocutory application seeking interrogatory be appropriate?
The Minister personally made a decision under s 501CA(4) of the Migration Act 1958 (Cth), after which the Applicant brought proceedings in the Federal Court (FCA). As part of those proceedings, the Applicant made an interlocutory application seeking to administer 2 interrogatories to be answered by the Minister, in the following terms:
(1) How many minutes did your consideration (inclusive of reading time) of the brief from your Department occupy before you decided on 14 April 2021 not to revoke the mandatory cancellation decision (non-revocation decision) made earlier on 13 November 2019?
(2) Did you read the statement of draft reasons, which had been prepared by your Department and had been included in the brief, before you made the non-revocation decision on 14 April 2021? If the answer is yes, how many minutes did your consideration (inclusive of reading time) of that particular document take?
According to the FCA:
3. The Minister, acting personally, signed a statement to the effect that he was not satisfied that [the Applicant] passes the character test and was not satisfied there was 'another reason' why the cancellation of [the Applicant's] visa should be revoked. The statement then said:
Accordingly, the power in s 501CA(4) of the Act to revoke the original decision is not enlivened and [the Applicant's] … visa remains cancelled.
4 The statement signed by the Minister concluded by saying: 'My reasons for this decision are set out in the attached Statement of Reasons'. The record of the statement that has been produced by the Minister in these proceedings is a photographic image of the statement as signed by the Minister (Image).
14 In oral submissions [for the Applicant], reliance was placed upon the form of the Image. It was submitted that it depicts a folder in which there is a tab with an arrow pointing 'SIGN HERE' and the signature of the Minister at that point. The Image shows the folder open on a person's lap with what was submitted to be (and appears to be) a car steering wheel adjacent to the top of the folder. It was submitted that those matters were sufficient to provide grounds for suspecting that the Minister did not consider the draft reasons which had been prepared and provided to the Minister. However, a claim of that kind is not articulated in the application. The evidence as to the claim that is sought to be advanced is a claim that proper, genuine and realistic consideration was not given to matters advanced by [the Applicant] in his representations.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "interrogatories may be ordered in an 'appropriate case' according to the same principles that apply in considering whether to order discovery in judicial review proceedings"?
Question 2: Would "an unparticularised claim that there was a failure by the Minister to give proper, genuine and realistic consideration to [the applicant's case] support the interrogatories"?
Question 3: If the answer to Question 2 is "no", would the appropriate order be that the interlocutory application "be adjourned to a date to be fixed with liberty to the applicant to apply to relist the application within 14 days of filing amended grounds of review"?
The FCA answered those questions as follows: