Cwalino v Honourable Brendan O'Connor
[2011] FCA 1257
•3 November 2011
FEDERAL COURT OF AUSTRALIA
Cwalino v Honourable Brendan O’Connor [2011] FCA 1257
Citation: Cwalino v Honourable Brendan O’Connor [2011] FCA 1257 Parties: SUZANNE NICOLE CWALINO v HONOURABLE BRENDAN O'CONNOR File number: ACD 49 of 2011 Judge: FINN J Date of judgment: 3 November 2011 Catchwords: ADMINISTRATIVE LAW – Extension of time in which to apply for an order of review – Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11(1)(c) – Validity of refusal to consent to the international transfer of a prisoner – International Transfer of Persons Act 1977 (Cth) s 20(3). Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11(1)(c)
International Transfer of Persons Act 1997 (Cth) Act s 20(3)Convention on the Transfer of Sentenced Persons, Strasbourg, 21 March 1983
Date of hearing: 3 November 2011 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Ms H Younan Solicitor for the Respondent: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 49 of 2011
BETWEEN: SUZANNE NICOLE CWALINO
ApplicantAND: HONOURABLE BRENDAN O'CONNOR
Respondent
JUDGE:
FINN J
DATE OF ORDER:
3 NOVEMBER 2011
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.An extension of time to file and serve an application under the ADJR Act be granted.
2.The decision of the respondent Minister of 9 May 2011 be set aside.
3.No order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 49 of 2011
BETWEEN: SUZANNE NICOLE CWALINO
ApplicantAND: HONOURABLE BRENDAN O'CONNOR
Respondent
JUDGE:
FINN J
DATE:
3 NOVEMBER 2011
PLACE:
CANBERRA
REASONS FOR JUDGMENT
The applicant, Suzanne Nicole Cwalino, seeks, first, an extension of time in which to lodge an application for an order of review under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, secondly, a determination as to the validity of a decision of the respondent Minister made on 9 May 2011 under s 20(3) of the International Transfer of Persons Act 1997 (Cth) refusing consent to her transfer to Canada.
It is unnecessary that I set out the grounds of review advanced by Ms Cwalino (who is self-represented) though I will comment on them below. The respondent has conceded, and has communicated to Ms Cwalino, that she may not have been afforded procedural fairness in the making of the decision as she may not have been given an appropriate opportunity to make submissions in support of her case. In consequence, in a letter to her of 24 October 2011 he invited her to execute a consent order under which the 9 May 2011 decision would be set aside. The concession made, if I might say so, was a fair and proper one. As is apparent from correspondence between officers of the Attorney-General’s Department and Ms Cwalino, her most substantial submission was made by letter dated 3 May 2011, though probably not sent until 5 May 2011, furnishing additional information about her personal circumstances and the enforcement of her sentence. These were not received in the Minister’s office until 12 May 2011, ie after his decision. Equally, they post-dated the departmental recommendation made to the Minister of 28 April 2011, which recommendation was adopted by the Minister.
Having been informed of the Minister’s refusal of his consent, Ms Cwalino has acted, apparently, upon a communication from the Attorney-General’s Department and has filed a new application for transfer and then proceedings in this Court, the object of which was to seek judicial review of the Minister’s decision.
The second transfer application has not been determined. It awaits receipt of communications from the Canadian authorities concerning it. Of course it cannot prospectively be the subject of any challenge in these proceedings.
In taking his decision the Minister, having an unconstrained discretion to consent to, or refuse, a transfer took into account a policy instrument which clearly had been prepared as a guide to decision making under the Act and had been approved by him and his predecessors. The Act itself was passed in furtherance of the Convention on the Transfer of Sentenced Persons done at Strasbourg on 21 March 1983 to which both Australia and Canada are parties.
Unfortunately Ms Cwalino does not appear to appreciate the role that such policy instruments play, and are properly permitted to play, in administrative decision making in this country, though she has had some level of legal training in Canada. Her challenge to the use of the policy was that (i) there was no legislative authority for it; (ii) the policy was ultra vires; or (iii) was applied in a manner that unduly fettered the exercise of the Minister’s discretion. As I have not had the need to hear and consider submissions on the substantive application, it is unnecessary for me to enter into any detail upon these grounds of review. I merely wish to indicate to Ms Cwalino that as presently advised, I consider they have formidable obstacles standing in their way. They have properly been identified by counsel for the respondent in written submissions.
Equally, the orders she seeks (apart from setting aside the 9 May 2011 decision) are quite misconceived. This Court has no power to compel the Minister to consent to her transfer to Canada. I cannot usurp the Minister’s function.
I will order that the decision of the respondent Minister of 9 May 2011 be set aside.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 3 November 2011
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