Federal Court. Is an order requiring the disclosure of any record of the Minister’s locations not to be made lightly? Can it be said that, "where the Minister decides to personally exercise the power, with that decision must come the potential for the Minister’s obligations to be greater in terms of responding to procedural steps taken in pursuit of the individual’s right to seek judicial review"?
The Minister personally refused to grant the Applicant a protection visa, pursuant to s 501(1) of the Migration Act 1958 (Cth). In addition to filling a judicial review application, the Applicant also filed interlocutory applications for the Minister to answer interrogatories and for discovery of certain categories of documents in relation to his application for judicial review. This decision concern those interlocutory applications.
Ground 8 of the judicial review application "alleges that the Minister did not engage in any active intellectual process with respect to the material he purportedly considered, or the Minister only purportedly made a decision when it was instead actually made by a delegate and not him personally" and was particularised as follows:
(a) the conclusion that there was no active intellectual process, or that the decision was made by a delegate and not by the Minister personally, is to be inferred from the combination of:
a. the practice of the Minister’s Department, pursuant to which the Minister is presented with lengthy pre-drafted reasons for the decision;
b. the volume of material purportedly considered by the Minister, running [to] approximately 600 pages;
c. the time between which he first had those materials, which, insofar as the Applicant can say prior to discovering interrogatories, began no earlier than 19 July 2021, and ended no later than around the morning of 23 July 2021;
d. the absence of any summary of those materials and indication that he considered such summary;
e. the Minister’s position and responsibilities within the Executive including within Cabinet;
f. the inherent unlikelihood, by reason of the matters in subparagraphs b, c, d, and e, above, that the Minister read the relevant material;
g. the imminency [sic] of the now-vacated hearing date in this matter of 26 July 2021, when the decision was made.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, although and order should be made for the discovery of the Minister's diary entries "insofar as they record the times and periods of time sought", an order requiring the disclosure of any record of the Minister’s locations in the diary entries is not to be made lightly?
Question 2: Did "an email chain on 21 and 22 July 2021 recently produced by the Minister indicating that there may have been some kind of engagement with respect to the s 501(1) decision by persons within the Minister’s office before the s 501(1) decision was made" justify the making of an order for the discovery of the following categories of documents: " 7. A copy of all communications received by the Respondent, including text messages, emails, submissions (including drafts), reasons (including drafts), briefing notes and supporting documents, provided to the respondent (including by private staff) during the Relevant Period in relation [to] the Decision (to the extent not already covered by another discovery category). 8. A copy of any records, notes or working documents, including handwritten notes, annotations or highlighting, made or created by [the Respondent] during the Relevant Period in relation to the Decision"?
Question 3: Would the following questions to be administered to the Minister be relevant to Ground 8 and, if so, should the Minister be interrogated on them on the basis that "the evidence presently available highlights the limited period of time available to the Minister to consider a very substantial body of documentary material, including the draft statement of reasons provided by the Department, given, among other things, that it would appear that no summary of that material was provided to the Minister to assist him": "4. How many minutes did your consideration (inclusive of reading time) of the brief from your Department occupy, before you made the decision to refuse the Applicant’s visa application? 5. Did you read the statement of draft reasons, which had been prepared by Department and had been included in the brief, before you made the decision to refuse the Applicant’s visa application?"?
Question 4: The Minister opposed the following question on which to interrogate the Minister on the basis that it would introduce "a kind of bracket creep" in that it "encourages … further forms of interrogatories": "6. Did you read each page of the attachments identified in the “Index of Relevant Material” which was Attachment 2 of your brief?". Can it be said in response that, "where the Minister decides to personally exercise the power, with that decision must come the potential for the Minister’s obligations to be greater in terms of responding to procedural steps taken in pursuit of the individual’s right to seek judicial review"?
The FCA answered those questions as follows: