FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MERIT PROTECTION COMMISSIONER & ANOR | [2013] FCCA 650 |
| Catchwords: ADMINISTRATIVE LAW – Extension of time application – internal departmental review – procedural fairness – generality of claims – discussion of what is “conduct” and “decision” – decisions made under the Workplace Relations Act not ‘reviewable’ under the ADJR Act – decisions of an ‘executive or administrative’ kind not made under an ‘enactment’ also not reviewable under the ADJR Act. |
Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3(1)-(5), 5, 6, 11, 13, 16, Schedule 1
Public Service Act 1999 (Cth), ss.20, 23(4)(e), 23(5), 57(1)
Workplace Relations Act 1996 (Cth), s.328
Regulations:
Public Service Regulations 1999 (Cth)
| Applicant: | MAHEND KUMAR |
| First Respondent: | MERIT PROTECTION COMMISSIONER |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & CITIZENSHIP |
| File Number: | CAG 11 of 2011 |
| Judgment of: | Judge Neville |
| Hearing dates: | 3 & 4 October 2012 |
| Date of Last Submission: | 31 October 2012 |
| Delivered at: | Canberra |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | Self-Represented |
| Solicitor/Advocate for the Second Respondent: | Mr P Vermeesch |
| Solicitors for the Second Respondent: | Australian Government Solicitor, Canberra |
ORDERS
The second further Amended Application (“the Amended Application”) filed on 16th March 2012, and all antecedent applications, be dismissed.
Within 14 days of the date of these orders, the parties are to file written submissions (not exceeding 3 pages) in relation to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 11 of 2011
| MAHEND KUMAR |
Applicant
And
| MERIT PROTECTION COMMISSIONER |
First Respondent
| DEPARTMENT OF IMMIGRATION & CITIZENSHIP |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By reference primarily to…
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Details
- Case
- [2013] FCCA 650
- Decision Date
CaseChat Overview and Summary
The applicant, Mr Kumar, sought judicial review of various decisions and conduct related to a performance management process undertaken by the Department of Immigration and Citizenship (DIAC) and subsequent reviews by the Merit Protection Commissioner (MPC). The proceedings were before Judge Neville in the Federal Court of Australia. Mr Kumar challenged decisions made by Ms Gorlick, Mr Fileman, and Mr Farrell concerning the institution and progression of performance management stages, as well as a decision by Mr Farrell to reduce his classification. He also sought review of decisions by the MPC deeming certain actions "out of time" and recommending confirmation of the performance management outcome, and a DIAC decision confirming the MPC's recommendation.
The primary legal issues before the Court were whether the decisions and conduct of the DIAC officers and the MPC were affected by jurisdictional error, legal error, breaches of natural justice or procedural fairness, improper or excessive exercise of power, failure to consider relevant considerations, or were otherwise contrary to law. Specifically, the applicant alleged bias, predetermination, reliance on inadequate or misleading evidence, and misconstruction of the DIAC's performance management framework. The Court was also required to determine whether the reviews conducted by Mr Hodges and the MPC had cured any procedural defects.
The Court noted that the applicant had not formally sought review of the reviews conducted by Mr Hodges or Mr Napier, and therefore indicated it would not consider those reviews. The applicant's grounds of review against the DIAC officers focused on alleged breaches of natural justice and procedural fairness, jurisdictional error, improper exercise of power, and bias. In relation to the MPC's decisions, the applicant argued that the MPC had erred in law by deeming aspects of his claims "out of time," thereby failing to consider the decision in its totality and denying itself the opportunity to review the merits with a fresh mind. The applicant sought orders to set aside the impugned decisions and conduct, and for costs.
The primary legal issues before the Court were whether the decisions and conduct of the DIAC officers and the MPC were affected by jurisdictional error, legal error, breaches of natural justice or procedural fairness, improper or excessive exercise of power, failure to consider relevant considerations, or were otherwise contrary to law. Specifically, the applicant alleged bias, predetermination, reliance on inadequate or misleading evidence, and misconstruction of the DIAC's performance management framework. The Court was also required to determine whether the reviews conducted by Mr Hodges and the MPC had cured any procedural defects.
The Court noted that the applicant had not formally sought review of the reviews conducted by Mr Hodges or Mr Napier, and therefore indicated it would not consider those reviews. The applicant's grounds of review against the DIAC officers focused on alleged breaches of natural justice and procedural fairness, jurisdictional error, improper exercise of power, and bias. In relation to the MPC's decisions, the applicant argued that the MPC had erred in law by deeming aspects of his claims "out of time," thereby failing to consider the decision in its totality and denying itself the opportunity to review the merits with a fresh mind. The applicant sought orders to set aside the impugned decisions and conduct, and for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Applicant’s [Further] Amended Application for an Order for Review, filed 16 March 2012, and the grounds upon which his relief is sought, are in the following terms:[11][11] In his amended application Mr Kumar refers to a review conducted by Mr Hodges, and challenges its process and findings. However, while he makes no formal application for review of it, nonetheless he seeks orders that his “decision” be set aside. But there is no relevant “decision” from Mr Hodges. Likewise, in the mass of documents and affidavits, there is reference to a review conducted by Mr Napier in 2008. As with Mr Hodges, formally, Mr Kumar seeks no review of anything said or done by Mr Napier. In these circumstances, I do not propose to consider either of the reviews conducted by Mr Hodges or Mr Napier. See also the Department’s similar observations regarding no relief sought in relation to the Hodge’s review: Transcript (3rd October 2012) pp.11 & 13.Application for review of conduct related to the making of decisions of:1. Ms Rebecca Gorlick of the Second Respondent (the Department of Immigration and Citizenship referred to as “DIAC”) of 15 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Gorlick’s conduct No 1) under section 6 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act);2. Mr Michael Fileman of the Second Respondent of 16 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Fileman conduct No 1") under section 6 the ADJR Act;3. Ms Rebecca Gorlick of the Second Respondent of 9 May 2008 that the applicant’s performance has been unsatisfactory and requires further development (the Gorlick’s conduct No 2) under section 6 of the ADJR Act;4. Mr Michael Fileman of the Second Respondent (DIAC) of 16 May 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Fileman conduct No 2) under section 6 of the ADJR Act; and5. Delegate Mr Craig Farrell of the Second Respondent (DIAC) of 25 June 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Farrell conduct No 1) under section 5 of the ADJR Act.Application for review of decisions of:6. Ms Rebecca Gorlick of the Second Respondent of 15 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Gorlick decision No 1) under section 5 of the ADJR Act;7. Mr Michael Fileman of the Second Respondent of 16 January 2008 that Stage 1 of the Performance Management Process be instituted against the Applicant (the Fileman decision No 1) under section 5 the ADJR Act;8. Ms Rebecca Gorlick of the Second Respondent of 9 May 2008 that the applicant’s performance has been unsatisfactory and requires further development (the Gorlick decision No 1) under section 5 of the ADJR Act; 9. Mr Michael Fileman of the Second Respondent of 16 May 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Fileman decision No 2) under section 5 of the ADJR Act;10. Delegate Mr Craig Farrell of the Second Respondent (DIAC) of 25 June 2008 that Stage 2 of the Performance Management Process be instituted against the Applicant (the Farrell decision No 1) under section 5 of the ADJR Act; 11. Delegate Mr Craig Farrell of the Second Respondent of 23 December 2008 that the Applicant’s classification be reduced from an APS EL 1 to an APS Class 6 (the Farrell decision No 2) under section 5 of the ADJR Act;12. The First Respondent (the Merit Protection Commissioner, referred to as (the MPC decision No 1) of 7 December 2009 and 15 January 2010 to determine certain actions for review were “out of time” and to not correspond any further in relation to the non-reviewable actions under section 5 of the ADJR Act; 13. The First Respondent referred to as (the MPC decision No 2 of 23 February 2011 to recommend to the 2nd Respondent (DIAC) that the action under review be confirmed (the MPC decision No 2) under section 5 of the ADJR Act; and14. Delegate Ms Maria Savic of the 2nd Respondent referred to as ("the DIAC decision No 2") of 7 July 2011 to confirm the MPC decision No 2 under section 5 of the ADJR Act;The Applicant’s grounds of review in relation to Ms Gorlick’s conducts [sic] 1 and 2 are:(a) that Ms Gorlick fell into legal and jurisdictional error by misconstruing the requirements of the DIAC’s CA and DIAC’s Performance Management Framework;(b) that Ms Gorllick’s conducts breached the rules of natural justice and procedural fairness;(c) that Ms Gorlick’s conduct was an improper and excessive exercise of her power; (d) that Ms Gorlick’s conduct was tainted and induced by an apprehension of bias on the basis of predetermination in association with Mr Fileman; and(e) that there was no logical and/or probative evidence or other material to justify Ms Gorlick behaving in such a heavy handed manner.The Applicant’s grounds of review in relation to Mr Fileman’s conducts [sic] 1 and 2 are: (a) that Mr Fileman fell into legal and jurisdictional error by misconstruing the requirements of the DIAC’s CA and DIAC’s Performance Management Framework;(b) that Mr Fileman’s conducts breached the rules of natural justice and procedural fairness; (c) that Mr Fileman did not have jurisdiction to conduct himself in such a manner; (d) that Mr Fileman’s conduct was an improper and excessive exercise of power; (e) that Mr Fileman’s conduct was tainted and induced by an actual as well as an apprehension of bias on the basis of his predetermined outcome in association with Ms Gorlick and delegate Mr Farrell through his provision of false and misleading information; (f) the evidence relied upon by Mr Fileman to justify his actions were manifestly inadequate and they were neither logical nor probative; and(g) the evidence provided by Mr Fileman to justify his actions did not contain relevant information and was therefore misleading.The Applicant’s grounds of review in relation to Mr Farrell’s decision are: (a) that his decision’s [sic] were induced by an apprehension of bias on the basis of predetermination in association with Mr Fileman;(b) that a breach of the rules of natural justice occurred in connection with the making of the decision;(c) that a breach of the rules of procedural fairness occurred as the requirements as laid down in the DIAC CA, DIAC Policy and DIAC Procedures were not observed;(d) that Mr Farrell failed to take into account relevant considerations; and(e) that the decision was unreasonable and excessive exercise of the power and therefore improper was otherwise contrary to law.The Applicant’s grounds of review in relation to Mr Chris Hodges’s primary review was [sic] that:(a) that the primary review failed to consider the aspects of the applicant’s claims about breaches of the rules of natural justice and procedural fairness;(b) that Mr Hodges asked himself the wrong question and ignored relevant considerations;(c) that the primary review did not cure procedural the defects.The Applicant’s grounds of review in relation to the “MPC” decision no’s 1 and 2 are:(a) the MPC fell into an error of law by failing to consider the decision in it’s [sic] totality because of its decision to declare significant aspects of the applicant’s claims as “out of time” thereby denying itself the opportunity to consider the merits of the decision with a fresh and independent mind; (b) the MPC asked itself the wrong question and ignored the relevant considerations; (c) the MPC review did not ‘cure’ the procedural defects; and (d) the MPC did not carry out a review as required under the Public Service Legislation.The Applicant’s grounds of review in relation to the DIAC decision no 2 are that:(a) it also fell into error of law by failing to consider the decision in it’s [sic] totality because of its decision to declare significant aspects of the applicant’s claims as “out of time” thereby denying itself the opportunity to consider the merits of the decision with a fresh and independent mind. (b) it again asked itself the wrong question and ignored the relevant considerations; and(c) it’s decision did not ‘cure’ it’s [sic] own procedural defects. The Applicant seeks orders that:1. the decisions of Ms Gorlick, Mr [sic] Fileman, Mr Farrell, Mr Hodges, the MPC and Ms Savic be set aside; and 2. the conduct related to the decisions of Ms Gorlick, Mr Fileman and Mr Farrell is conduct inconsistent with the principles of natural justice and procedural fairness; and3. costs of these proceedings be payable to the applicant; and4. such other orders as this Honourable Court thinks fit.
Ratio Decidendi
Legal Principle Established
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