Application for Minister to Answer Interrogatories
The plaintiffs filed an application for an order that the Minister answer interrogatories where the previous application for interrogatories was adjourned. The Minister did not revoke cancellation of applicant's visa. The Court, in determining whether interrogatories should not be allowed on the basis that applicant's claims are unarguable, assessed whether the interrogatories relate to claims advanced in proceeding and the sufficiency of the personal consideration made by the Minister.
Facts:
Mr McQueen's visa has been cancelled. The Minister ('M'), acting personally, has decided that the cancellation of his visa should not be revoked. An application has been brought to review the Minister's decision on the basis of alleged jurisdictional error. The application raises three grounds of review, namely (a) the Minister failed to give proper, genuine and realistic consideration to the merits of Mr McQueen's case; (b) the Minister denied Mr McQueen procedural fairness by failing to respond to a substantial, clearly articulated argument; and (c) the decision of the Minister was legally unreasonable or illogical and irrational or both.
The first claim alleges that the Minister 'appears to have purported to decide [Mr McQueen] case while sitting in the front driver seat of a motor vehicle' and reliance is placed upon a photographic image produced by the Minister as forming part of the 'decision record'. The photograph depicts a lever arch folder of materials open on a page that is signed by the Minister adjacent to a sticker indicating 'sign here'. It includes what appears to be the steering wheel of a motor vehicle.
An application is brought by Mr McQueen to administer the following interrogatories to be directed to the Minister: "(a) During your time as Minister, including your time as Acting Minister, how many decisions under Part 9 of the Migration Act 1958 (Cth) did you personally make?; (b) In respect of the decisions referred to at (a) above, how many of the briefs to you prepared by your Department for the purpose of each of those personal decisions by you did not have 'Sign here' stickers (or similar stickers), directing you to the pages of documents included in that brief that may have required your signature?; (c) On what date, and at what time and place, did you receive the brief prepared by your Department for the purpose of a possible personal decision by you pursuant to s 501CA(4) in respect of the applicant?; (d) At what time and place, on 14 April 2021, did you make the decision pursuant to s 501CA(4) in respect of the applicant?"
On the hearing of the application no reference was made to the earlier adjourned application. Senior Counsel for the Minister took objection to the form of the proposed additional ground of review as a foundation for the application. It was submitted that it amounted to an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all.
It is claimed that instead of the Minister exercising a personal judgement as to whether to revoke the visa cancellation (after taking departmental advice), the Minister has participated in a process by which he was presented with reasons why the visa cancellation should not be revoked, circled an option to exercise a personal power and then adopted the reasons without discussion, amendment or sufficient time to personally consider sufficiently the matters raised in representations made by Mr McQueen (and other similar applicants). It is claimed that the Minister gave insufficient personal consideration of application in order to amount to personal exercise of power.
Issue:
Whether or not an order should be made for the administration of the proposed interrogatories as set out above.
Applicable law:
Analysis:
The Minister produced a photograph appearing to be a signed decision record on a person's lap in the driver's seat of a motor vehicle as record of formation of the Minister's state of satisfaction for the purposes of s 501CA(4) of Migration Act 1958 (Cth). The photograph depicts the Minister's signature beside the 'sign here' sticker. The fact that the decision record provided is in the form of a photograph that appears to be taken of the page in a file on the lap of a person in the driver's seat of a motor vehicle and that the number of similar decisions made by the Minister personally and the extent of other responsibilities of the Minister limits the time available to the Minister to consider the relevant representations. Those matters are also put in the context of the nature of the decision to be made by the Minister.
In that regard, it is now well established that the exercise of the power to revoke the cancellation of a visa which arises when an affected party makes representations in support of revocation requires a real and genuine consideration of each substantial and clearly expressed claim. As matters presently stand, it could not be concluded that the claims made are unarguable and that the interrogatories should not be allowed on that basis.
Conclusion:
The Court granted leave to the applicant to amend his application in terms of the further amended originating application for review annexed to the affidavit of Mr Ziaullah Zarifi dated 21 October 2021 and service of the further amended originating application is dispensed with. Leave to the applicant, is also granted, to administer the following interrogatories:
(a) During your time as Minister, including your time as Acting Minister, how many decisions under Part 9 of the Migration Act 1958 (Cth) did you personally make?
(b) On what date, and at what time and place, did you receive the brief prepared by your Department for the purpose of a possible personal decision by you pursuant to s 501CA(4) in respect of the applicant?
(c) At what time and place, on 14 April 2021, did you make the decision pursuant to s 501CA(4) in respect of the applicant?
The respondent is to answer the interrogatories on or before 19 November 2021. The costs of the interlocutory application dated 29 September 2021 are reserved.
