FUD18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: THAWLEY J
• Judgment Date: 06 November 2019
• Neutral Citation: [2019] FCA 1858
• Date: 06 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

FUD18 v Minister for Home Affairs [2019] FCA 1858

File number:	NSD 1705 of 2018
Judge:	THAWLEY J
Date of judgment:	6 November 2019
Catchwords:	PRACTICE AND PROCEDURE – Notice to Produce served pursuant to r 30.28 of the Federal Court Rules 2011 (Cth) – application to set aside Notice to Produce – principles governing the exercise of the power to set aside a Notice to Produce – apparent relevance – public interest immunity claim – whether production of documents would harm Australia’s international relations – application dismissed
Legislation:	Federal Court Rules 2011 (Cth) r 30.28 Migration Act 1958 (Cth) ss 65, 476A, 501(1), 501(6)(h), 503A
Cases cited:	Alister v The Queen (1984) 154 CLR 404 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 Conway v Rimmer [1968] AC 910 National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 S v Boulton (2006) 151 FCR 364 Sankey v Whitlam (1978) 142 CLR 1 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90
Date of hearing:	6 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	63
Counsel for the Applicant:	Mr T Brennan with Mr N Sedaghati
Solicitor for the Applicant:	Kinslor Prince Lawyers
Counsel for the Respondent:	Mr G Johnson SC with Mr M Cleary
Solicitor for the Respondent:	The Australian Government Solicitor

ORDERS

		NSD 1705 of 2018
BETWEEN:	FUD18 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	6 NOVEMBER 2019

THE COURT ORDERS THAT:

1. The applicant’s interlocutory application filed on 30 September 2019 be dismissed.

2. The applicant pay the respondent’s costs of the interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1. On 23 September 2019 the solicitors for the respondent, the Minister for Home Affairs, served a Notice to Produce on the applicant (FUD18) pursuant to r 30.28 of the Federal Court Rules 2011 (Cth). By an interlocutory application filed on 30 September 2019, the applicant seeks an order setting aside the Notice to Produce.

Background

2. The applicant is a Vietnamese citizen. He first travelled to Australia with his wife and two daughters in around September 2000, when his wife was granted permanent residence. The applicant’s wife and two daughters were granted Australian citizenship on 22 September 2004. Although his wife and two daughters then lived in Australia, the applicant spent the majority of his time in Vietnam where he was a senior executive in a large State-owned corporation. He did not become an Australian citizen.

3. The applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) Visa on 24 August 2010 and was granted a Bridging A visa on the basis of that application.

4. On 18 February 2011, the Investigative Security Agency of Vietnam issued an arrest warrant for the applicant. An Interpol Red Notice (IRN) was published in relation to the applicant on 11 March 2011.

5. On 20 April 2011, the applicant lodged an application for a Return (Residence) (Class BB) Five Year Resident Return (subclass 155) visa (subclass 155 visa). This application was made on the basis that it was a “more logical application to make given [the applicant’s] prior permanent residence status”.

6. Over seven years later, on 25 June 2018, a delegate of the Minister notified the applicant of his decision to refuse the application for the grant of the following visas:

1. Partner (Temporary) (Class UK) (Subclass 820) visa; and

2. Partner (Residence) (Class BS) (Subclass 801) visa.

7. On 28 June 2018, a delegate of the Minister wrote to the applicant advising him that the Minister intended to consider refusing to grant the subclass 155 visa under s 501(1) of the Migration Act 1958 (Cth) on the basis that (First Notice):

[t]he Department of Home Affairs holds information about your criminal history listed at the end of this notice, which suggests that you may not pass the character test by virtue of s 501(6)(h) of the Migration Act.

8. On 27 July 2018, a delegate of the Minister wrote to the applicant to “re-issue” the First Notice and provide further or updated information. In the Second Notice, the Minister stated:

The Department of Home Affairs holds information received by the Australian Federal Police and Interpol that you are subject to an active Interpol Red Notice (IRN) which remains in effect. This is the same IRN referred to in the Internet media articles listed below (see enclosures). Please note that not all IRNs are approved for public dissemination and thus the relevant IRN in this case does not appear on the Interpol website.

On the basis of the active IRN, you may not pass the character test by virtue of s501(6)(h) of the Migration Act.

9. The Second Notice also advised the applicant that, although the Department could disclose the existence of an Interpol Red Notice (IRN), its content was protected from disclosure under s 503A of the Act. The Second Notice therefore invited the applicant to comment on any factors he believed to be relevant to whether he would pass the character test.

10. On 14 September 2018, after further correspondence with the applicant’s solicitor, the Department confirmed that permission had been granted to disclose the contents of the IRN in full. A copy of the IRN was provided to the applicant.

THE PRINCIPAL PROCEEDINGS

11. By way of an originating application filed on 17 September 2018, the applicant sought interlocutory and declaratory relief under s 476A of the Act, with respect to the Second Notice and his application for a subclass 155 visa. The originating application was subsequently amended.

12. The applicant sought, amongst other matters, an order restraining the Minister from refusing the visa application on the basis of the Second Notice and a declaration that it was not reasonable to infer from the IRN that the applicant would present a risk to the Australian community or a segment of it. He also sought a writ of mandamus requiring the Minister to make a decision on the visa application.

13. The grounds of the amended originating application as they presently stand are as follows:

1. Any decision to refuse the Visa Application [on the basis of the Second Notice] would involve an error of law constituting a jurisdictional error.

Particulars

a. The Notice was based only on one ground, being s 501(6)(h) of the Migration Act 1958 (“the Act”) which requires the existence of two elements, being:

i. An Interpol notice is in force in relation to the Applicant; and

ii. [struck out]

iii. It is reasonable to infer from the Interpol notice that the Applicant would present a risk to the Australian community or a segment of that community.

b. An Interpol Red Notice in relation to the Applicant file number 2011/13450 (IRN) was published on 11 March 2011.

c. Any inference from the IRN that the Applicant would...