McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 19 July 2021
• Neutral Citation: [2021] FCA 812
• Court: Federal Court
• Date: 19 July 2021

Federal Court of Australia

McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 812

File number:	WAD 98 of 2021
Judgment of:	COLVIN J
Date of judgment:	19 July 2021
Catchwords:	PRACTICE AND PROCEDURE - application for order that Minister answer interrogatories - where Minister did not revoke cancellation of visa pursuant to power under s 501CA(4) of Migration Act 1958 (Cth) - whether interrogatories relate to issues raised in proceeding - whether application premature - where applicant submits interrogatories relevant to claim of failure to give proper, genuine and realistic consideration - where Minister produced photographic image appearing to be signed decision record on person's lap in driver's seat of motor vehicle as record of formation of Minister's state of satisfaction for the purposes of s 501CA(4) - application adjourned
Legislation:	Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 Egan v Minister for Home Affairs [2021] FCAFC 85 EWV20 as litigation representative for AFF20 v Minister for Home Affairs [2021] FCA 272 Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 QJMV v Minister for Home Affairs [2021] FCA 136 QJMV v Minister for Home Affairs [2021] FCA 255 Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	19
Date of hearing:	16 July 2021
Counsel for the Applicant:	Dr J Donnelly with Mr K Tang (Pro Bono)
Solicitor for the Applicant:	Scott Calnan Lawyer
Counsel for the Respondent:	Ms CI Taggart
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		WAD 98 of 2021
BETWEEN:	JOSEPH LEON MCQUEEN Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	COLVIN J
DATE OF ORDER:	19 JULY 2021

THE COURT ORDERS THAT:

1. The interlocutory application by the applicant dated 1 July 2021 be adjourned to a date to be fixed.

2. There be liberty to the applicant to apply to relist the application within 14 days of filing any amended grounds of review.

3. The costs to date of and incidental to the interlocutory application be reserved.

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

REASONS FOR JUDGMENT

COLVIN J:

1. Mr Joseph McQueen is currently being detained under the provisions of the Migration Act 1958 (Cth) consequent upon the cancellation of his five year resident return visa.

2. In late 2019, Mr McQueen was sentenced to 21 months of imprisonment for selling methylamphetamine. By reason of his conviction and sentence, his visa was cancelled under s 501(3A) of the Migration Act. In response to a statutorily required invitation, Mr McQueen made representations to the Minister in support of the revocation of the cancellation of his visa. A statutory power to do so is conferred upon the Minister by s 501CA(4). It provides that the Minister may revoke the visa cancellation (described as the original decision) if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test … ; or

(ii) that there is another reason why the original decision should be revoked.

3. The Minister, acting personally, signed a statement to the effect that he was not satisfied that Mr McQueen passes the character test and was not satisfied there was 'another reason' why the cancellation of Mr McQueen'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 Mr MCQUEEN'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).

5. Mr McQueen has commenced proceedings in this Court seeking review of the Minister's decision for alleged jurisdictional error. The application for review was prepared when he was acting on his own behalf. He is now assisted by counsel acting pro bono. Included in the grounds stated in the application is a claim that the Minister 'failed to give proper consideration to certain matters identified in the statement of reasons as steps in the decision making process'. It is submitted for Mr McQueen that, in substance, the ground alleges that the Minister did not give proper, genuine and realistic consideration to his case. There are no particulars to the ground. The applicant's case as to the nature of the statutory obligation of the Minister when it came to forming the state of satisfaction referred to in s 501CA(4) is not explained with any precision.

6. In these circumstances, an application is brought to administer two interrogatories to be answered by the Minister. They are expressed 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?

7. The principles to be applied in determining whether to allow interrogatories in judicial review proceedings were considered in Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 at [24]‑[34]. 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. There must be a foundation in evidence or in the pleadings to support the application to administer interrogatories. There must be more than mere speculation or a bare allegation. If evidence is led as the basis for the application then it must demonstrate a foundation for suspicion that answers to the interrogatories may support a ground of review. Where an allegation is made in proceedings that have been commenced (whether in an application or a pleading) and the proceeding is not an abuse of process then a claim that has been formulated as part of the proceeding may adequately ground the order.

8. If the interrogatories are shown to have the requisite foundation then other case management considerations are brought to bear in deciding whether to allow the application to administer interrogatories. Those considerations include a balancing of the burden that would fall on the answering party, the forensic significance that the answers might have in resolving the issues, any delay that may result if interrogatories were to be administered, the practical consequences of the decision under review and whether the information may be obtained by other means.

9. In my view, an unparticularised claim that there was a failure by the Minister to give proper, genuine and realistic consideration to Mr McQueen's application is not a claim that would support the interrogatories. Put another way, the nature of the application that is brought is not one which raises an issue to which the answers to the...