Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

PRACTICE AND PROCEDURE - MIGRATION - Migration Review Tribunal - discovery pursuant to s.45 of the Federal Magistrates Act 1999 - factors to consider - relevance of documents - voluminous material - application refused.

Tran v Minister for Immigration [2004] FMCA 713 (23 September 2004)

Tran v Minister for Immigration [2004] FMCA 713 (23 September 2004)
Last Updated: 8 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION
[2004] FMCA 713



PRACTICE AND PROCEDURE - MIGRATION - Migration Review Tribunal - discovery pursuant to s.45 of the Federal Magistrates Act 1999 - factors to consider - relevance of documents - voluminous material - application refused.



Applicant:
BINH VAN TRAN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 393 of 2004



Delivered on:


23 September 2004



Delivered at:


Perth



Hearing Date:


23 September 2004



Judgment of:


McInnis FM



REPRESENTATION

Counsel for the Applicant:


Mr. P. Sheiner



Solicitors for the Applicant:


Christensen Vaughan



Counsel for the Respondent:


Ms. L. McPherson



Solicitors for the Respondent:


Australian Government Solicitor



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 393 of 2004

BINH VAN TRAN


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

Introduction

1. This is an application by the applicant Binh Van Tran (the Applicant) for a declaration by the court pursuant to s.45 of the Federal Magistrates Act 1999 that it is appropriate in the interests of the administration of justice to allow discovery in relation to certain documents. The section provides:-

"45 Interrogatories and discovery

(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

(2) In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:

(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant."

2. The documents which are said to be the relevant documents to which the declaration should apply are those documents set out in the decision of the Migration Review Tribunal (the MRT) dated 9 March 2004 and are listed in paragraph 5 of that decision as follows.

T1 - MRT case file V04/00938 folio numbered 1-121;

D1 - Departmental case file CLF2002/60852 folio numbered 1-203;

D2 - Departmental case file CLF2003/49415 folio numbered 1-201;

D3 - Departmental case file CLF2003/7422 folio numbered 1-201;

D4 - Departmental case file CLF2002/60849 folio numbered 1-205;

D5 - Departmental case file CLF2002/9671 folio numbered 1-201;

D6 - Departmental case file CLF2001/5854 folio numbered 1-185;

D7 - Departmental case file Q93-2208T folio numbered 1-367.

3. In support of the application the applicant relies upon an affidavit sworn by Andrew John Mason on 20 September 2004. The application is opposed by the respondent. It is evident from a brief review of the files now sought to be discovered that they would involve the discovery of voluminous material which I estimate to be approximately 1500 pages of material. In support of the application reference was made by counsel for the applicant to the MRT's decision and in particular its findings which appear in paragraph 51 as follows:-

"51. The visa applicant has been an unlawful noncitizen for over two years and married an Australian citizen in an attempt to remain in this country. He has been uncooperative with the Department with respect to applications for travel visas to other countries. He has been in detention since December 1999 and has now almost exhausted all his avenues of appeal. The risk of him now going underground if released on a bridging visa must be extremely high."

4. It is relevant to note other findings including paragraphs 49 and 50 as follows:-

"49. The visa applicant arrived in Australia on 16 October 1992 on a Visitor visa which he extended until February 1993, when he applied for a spouse visa, as he had married an Australian citizen. He was divorced from the Australian citizen on 10 November 1994 and was advised by the Department on 18 January 1996 that his application for permanent residence was refused. He then sought review of this decision, which was unsuccessful, and became an unlawful noncitizen on 23 February 1996. He remained an unlawful noncitizen until he was granted a succession of Bridging E visas commencing on 27 March 1998 and finishing on 6 December 1999. Those bridging visas were granted on the ground that the visa applicant was making arrangements to depart Australia. The visa applicant again became an unlawful noncitizen on 7 December 1999 before his detention on 10 December 1999.

50. The visa applicant was unlawful in Australia for 25 months. At the end of this period he advised the Department that he had married a Korean national and that his wife had given birth to a son. He was then granted a number of successive Bridging E visas for the next 20 months ostensibly to seek travel documents to either the USA or Vietnam. His application to return to USA was refused by the US authorities and he then stated that he did not want to travel to Vietnam. Throughout his dealings with the Department regarding arrangements to depart, both before and during detention, the visa applicant has not been cooperative. When, after a great deal of effort and diplomatic involvement, he was finally granted travel documents to go to Vietnam, he, almost 12 years after arriving in Australia, decided to lodge an application for a Protection visa."

5. The respondent has included a number of documents in the Court Book. Those documents include relevant correspondence, documents relied upon by the applicant and it is otherwise noted that there was in fact a hearing in this matter before the MRT which was conducted on 4 March 2004, albeit the matter was first listed on 2 March 2004, though had been postponed.

6. It is clear from both the evidence and findings which appear in the MRT decision and indeed in the record in relation to the protection visa decision that there is an extensive and comprehensive history in relation to this applicant. That extensive and comprehensive history is set out at least in part in the Court Book at page 30 and thereafter. In considering the issue of whether the court should exercise its discretion to make a declaration pursuant to section 45 of the Federal Magistrate's Court Act it is in my view relevant when considering the interests of justice to seek to identify whether the documents sought to be discovered are documents which could fairly be said to be relevant to the proceedings before this court.

7. Ultimately this court will need to consider whether or not it is appropriate to allow the application, that is, whether or not this is an appropriate case for judicial intervention in relation to this MRT decision. On my reading of the MRT reasons before the court and considering the contents of the Court Book I am not able to identify documents relied upon by the MRT which have not been disclosed or produced in the Court Book. There are insufficient particulars in support of this application to satisfy me that it would be appropriate or in the interests of justice to require the respondent in the circumstances of this application, having regard to the extensive history, to simply produce in answer to an order of this court the voluminous material which has only been recited as material which the tribunal had at the time that it made its decision.

8. In the circumstances it would be an improper exercise of this court's discretion to conclude that it would be in the interests of justice to make a declaration of the kind sought pursuant to s.45 of the Federal Magistrates Act 1999. That section in my view is designed to ensure that only relevant documents are brought before the court, that the process which may or may not occur in other courts of extensive voluminous discovery resulting in a high volume of documentary material, much of which is ultimately not relevant should be avoided to the extent that it is possible in this court.

9. The section places an onus upon the presiding Federal Magistrate to consider whether it is in the interests of justice to make the appropriate declaration and in my view in exercising that discretion it is important to consider the relevance of the documents sought to be discovered. On the material before me I am not satisfied that it would be in the interests of justice to make the declaration sought in relation to the voluminous material referred to in the various case files. For those reasons the application is refused.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 23 September 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia