Federal Court (Full Court). Were the the answers to the interrogatory sought before the primary judge "capable of forming the basis for an inference that persons in the appellant’s situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198" and an inference that the Minister "had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq"?
The Full Court of the Federal Court (FCAFC) described the relevant background as follows:
1 The parties have provided to the Court in advance of the hearing of the appeal a proposed consent order including an order allowing the appeal and other consequential orders. These reasons briefly explain why we made those orders.
2 The appellant sought leave to appeal against the whole of the judgment of the primary judge given on 11 November 2020 dismissing the appellant’s interlocutory application requiring the first respondent (“the Minister”) to provide answers to a number of interrogatories. A copy of the proposed interrogatories is attached as Annexure A to the primary judge’s reasons for judgment (AIX20 v Minister for Home Affairs [2020] FCA 1640). Leave to appeal was granted by a Judge of the Court on 4 May 2021.
3 The proceeding before the primary judge concerns a challenge by the appellant to the validity of the Minister’s decision to cancel the appellant’s visa under s 501(3)(b) of the Migration Act 1958 (Cth) (“the Act”). The appellant’s case according to ground two of the further amended originating application dated 21 August 2020 is that, in making the cancellation decision, the Minister failed to have proper regard to (inter alia) the prospect of the appellant being indefinitely detained.
4 According to the primary judge, in the reasons for the cancellation decision, the Minister accepted that Australia owed non-refoulement obligations in respect of the appellant and that if the appellant was returned to Iraq he would face a real chance of serious harm from the Iraqi authorities and Shia militias on the basis of his religion and his history of being detained by US forces for alleged involvement in terrorist activities. The Minister’s reasons also noted that, as a consequence of the cancellation decision, the appellant would be liable to removal under s 198 of the Act as soon as reasonably practicable, and would in the meantime be detained under s 189.
Some of the questions to the FCAFC were as follows:
Question 1: Were the the answers to the interrogatory sought before the primary judge "capable of forming the basis for an inference that persons in the appellant’s situation are not removed from Australia to Iraq, even though s 197C of the Act (as it then stood) removed non-refoulement obligations as a reason to not comply with s 198" and an inference that the Minister "had personal knowledge of the number of persons in respect of whom Australia owed non-refoulement obligations who had been involuntarily returned to Iraq"?
Question 2: If the answer to Question 2 is "yes", did the primary judge make an error of the kind described in House v The King (1936) 55 CLR 499 at 505 by holding otherwise?
Question 3: Can it be said that, "even if the interrogatories were answered in a manner that the appellant anticipated (showing that no or at least very few persons in the appellant’s situation had been returned to Iraq), the answers would be inadmissible because the success of the challenge to the validity of the cancellation decision depended on “the material that was before the Minister”"?
The FCAFC answered those questions as follows: