Mentink v Minister for Home Affairs

Link copied
Case Copied 44 min read

FEDERAL COURT OF AUSTRALIA

Mentink v Minister for Home Affairs [2013] FCAFC 113

Citation: Mentink v Minister for Home Affairs [2013] FCAFC 113
Appeal from: Mentink v Minister for Home Affairs [2013] FCA 68
Parties: WILFRED JAN REINIER MENTINK v MINISTER FOR HOME AFFAIRS
File number: QUD 132 of 2013
Judges: EDMONDS, GRIFFITHS AND PAGONE JJ
Date of judgment: 21 October 2013
Catchwords: PRACTICE AND PROCEDURE – appeal – primary judge refused application for extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – application of principles relevant to granting an extension of time – Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 – whether hearing substantive application would be futile
Legislation: Administrative Decisions (Judicial Review) Act 1977 s 11(1)(c)
Freedom of Information Act 1992 (Cth)
Law Enforcement Integrity Commissioner Act 2006 (Cth)
Cases cited: ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 599, (2011) 180 LGERA 99
Hamden v Secretary, Department of Human Services [2013] FCA 3
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1
Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248
MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Tickner v Chapman (1995) 57 FCR 451
Date of hearing: The matter was heard on the papers
Date of last submissions: 27 July 2013
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 66
Appellant: The appellant acted on his own behalf
Counsel for the Respondent: Mr S McLeod
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 132 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

WILFRED JAN REINIER MENTINK
Appellant
AND:

MINISTER FOR HOME AFFAIRS
Respondent

JUDGES:

EDMONDS, GRIFFITHS AND PAGONE JJ

DATE OF ORDER:

21 OCTOBER 2013

WHERE MADE:

SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.The appeal be allowed. 

2.The orders made by the primary judge on 12 February 2013 be set aside.

3.Time be extended under s 11(1)(c) of the ADJR Act to enable the appellant to file and serve the originating application for judicial review relied on below.

4.There be 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

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 132 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

WILFRED JAN REINIER MENTINK
Appellant
AND:

MINISTER FOR HOME AFFAIRS
Respondent

JUDGES:

EDMONDS, GRIFFITHS AND PAGONE JJ

DATE:

21 OCTOBER 2013

PLACE:

BRISBANE

REASONS FOR JUDGMENT

EDMONDS J:

  1. I have had the advantage of reading and considering…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Mentink v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] FCAFC 113
Decision Date

CaseChat Overview and Summary

In the appeal of Mentink v Minister for Home Affairs, the Court of Appeal was tasked with reviewing the decision of the primary judge, Pagone J, who had refused the appellant's application for an extension of time to lodge his substantive application for judicial review. The appellant, Mentink, sought the extension under section 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary issues before the Court of Appeal were whether the primary judge erred in her approach to the application for an extension of time and whether she misapplied the principles relevant to granting such an extension. The Court of Appeal was also required to consider the appropriate standard of review for the proposed substantive application at the interlocutory stage.

The Court of Appeal found that the primary judge had erred in her approach to the extension application. The Court noted that the primary judge seemed to have considered the substantive merits of the proposed application rather than focusing on whether the appellant had an arguable case based on the material before the Court at that stage. The Court emphasised that the relevant question was whether the appellant had an arguable case that the Minister had failed to take into account the material provided by the appellant, rather than determining the substantive claim. The Court highlighted that the primary judge's finding in paragraph [28] was premature and that she did not heed the need for caution as emphasised in Hunter Valley Developments Pty Ltd v Cohen and Seiler v Minister for Immigration, Local Government and Ethnic Affairs. Furthermore, the Court of Appeal concluded that the primary judge's approach to the application misapplied the relevant principles, as evidenced by her findings in paragraphs [28] and [30].

The Court of Appeal allowed the appeal, set aside the orders made by the primary judge, and granted an extension of time under section 11(1)(c) of the ADJR Act to enable the appellant to file and serve his originating application for judicial review. The Court did not make any order as to costs. The decision underscores the importance of the correct approach when considering an application for an extension of time, particularly at the interlocutory stage, and the need to avoid prematurely determining the substantive merits of a claim.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the primary judge on 12 February 2013 be set aside.

3. Time be extended under s 11(1)(c) of the ADJR Act to enable the appellant to file and serve the originating application for judicial review relied on below.

4. There be no order as to costs.

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

Background

Background to the litigation

I have had the advantage of reading the reasons for judgment of Pagone J in draft form. I am grateful to his Honour for setting out much of the relevant background material to the appeal, which I will not repeat. For the following reasons I take a different view of certain matters and consider that the appeal should be allowed.Some additional relevant background material To provide some further relevant factual context, it is necessary to set out some additional material contained in the appellant’s affidavit filed by him in support of his application for an extension of time. As Pagone J points out, on 12 May 2012 the appellant wrote to the Minister raising various allegations of corrupt conduct by the Australian Commission for Law Enforcement Integrity (the ACLEI). Those allegations related to the ACLEI’s handling of various complaints of corruption made by the appellant in respect of investigations carried out by both the Commonwealth Ombudsman’s Office (Ombudsman) and the Australian Federal Police (AFP). Those investigations related to matters dating back to 2003. In broad terms, the appellant contended that the AFP had been complicit in the theft of his yacht in East Timor after the appellant was deported from there in late 2003. The appellant also complained that the AFP had improperly disclosed to the Indonesian police the appellant’s convictions between 2003 and 2009. The appellant’s complaints were dismissed by the AFP in 2004. He subsequently complained to the Ombudsman concerning the AFP’s conduct, alleging among other things that the AFP had improperly dismissed his complaints. Later in 2004, a delegate of the Ombudsman, Mr Nicholas Sellars, dismissed the appellant’s complaint. On 8 November 2008, the appellant made a further complaint to the ACLEI complaining of corruption issues in the AFP. His complaint was investigated by Mr Philip Moss, who occupied the office of the Integrity Commissioner. Both the ACLEI and the Integrity Commissioner are constituted by the Law Enforcement Integrity Commissioner Act 2006 (Cth) (LEIC Act). On 6 December 2011, the appellant was advised by the Executive Director of the ACLEI (Mr Stephen Hayward) that Mr Moss had decided to cease investigating the matters he had raised. The appellant made a request under the Freedom of Information Act 1992 (Cth) (the FOI Act) for access to information relating to the ACLEI’s investigation of his complaints. On 15 February 2012, he was provided with access to various documents (with redactions) relating to the ACLEI’s investigation and its reasons for dismissing his complaint. Prior to early 2010, the appellant was unaware that the Integrity Commissioner had referred the complaints he had made to the ACLEI to the AFP for investigation. In early 2010, the appellant was advised in a letter from Commissioner Negus of the AFP that his complaint had been referred to the AFP for investigation by the Integrity Commissioner. The appellant made various inquiries and discovered that an AFP officer (Mr Mark Walters), who had been involved in the matters which occurred in East Timor in 2003 and 2004 about which he complained to both the AFP and the Ombudsman, was involved in the AFP’s investigation of his complaint lodged in November 2008. At the same time, the appellant discovered that Mr Sellars (who, as noted above, had previously investigated and dismissed his complaint to the Ombudsman), was then working in the ACLEI. The appellant raised his concerns about these matters in letters he sent to the AFP and ACLEI in April 2010.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The sole ground of appeal set out in the notice of appeal is that the primary judge “made findings of fact on important issues that are not supported by the evidence. In his outline of written submissions in the appeal, the appellant clarifies that his appeal raises for determination whether there was any factual basis for the primary judge’s finding that the Minister had had regard to the appellant’s 12 May 2012 materials. The appellant also raises as an issue in the appeal the question of the proper standard to apply in assessing the merits of the proposed substantive application for judicial review at this interlocutory stage. The Minister raises no objection that the appellant’s case as presented in his written submissions went beyond the notice of appeal. For completeness, it might also be noted that, by consent, the appeal was conducted on the basis of the papers and without any oral hearing. Consideration In my view, the primary judge erred in refusing an extension of time in this matter. In particular, I consider that, with great respect, it seems that her Honour approached the application as though it raised for final determination the appellant’s proposed substantive application. Her Honour appears not to have heeded the need for caution as emphasised in the authorities referred to above or, if she did, her Honour misapplied the relevant principles. In my opinion, the error is evident in both R[28] and [30]. In the former paragraph, her Honour concluded that, “on the material before the Court I am not persuaded that, in making his decision, the Minister failed to take into account the volume of material provided by Mr Mentink in support of his complaint to the Minister concerning ACLEI”. Her Honour then found that it was “clear” from the Minister’s letter of 2 May 2012 to Senator Mason that, in reaching his decision to take Mr Mentink’s complaints no further, the Minister was aware, and fully informed, of the following matters:·the background to Mr Mentink’s complaints to and against the AFP, the Commonwealth Ombudsman and ACLEI;·the specific nature of Mr Mentink’s complaints;·the reasons that Mr Mentink had taken issue of processes within the ACLEI concerning the investigation of his complaints, and the manner in which the ACLEI had reconsidered its approach to the investigation;·the manner in which the ACLEI subsequently undertook the investigation of Mr Mentink’s complaints; and·the reasons for the decisions of the AFP, Commonwealth Ombudsman and ACLEI to investigate Mr Mentink’s complaints no further. There are two comments to make about that finding. First, having regard to the nature of the application before the Court and the stage of the proceedings, in my view it was premature to determine the appellant’s claim that the Minister had not taken into account the material which was set out in the appellant’s letter dated 12 May 2012 and its attached “interim analysis”. In my view, the relevant question was whether or not on the basis of the material then before the Court the appellant had an arguable case that the Minister had failed to take into account that material. The Minister did not dispute the appellant’s claim that the Minister was bound to consider all the material provided to him by the appellant in support of his application for the appointment of a special investigator. Whether or not a decision-maker has taken into account material which he or she is bound to consider is a question of fact (see Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 599, (2011) 180 LGERA 99 at [47]). It is equally well established that, where a decision-maker has provided reasons for a decision and the decision-maker is obliged to have regard to mandatory criteria (or, in some cases, a submission or representation), the relevant question is whether or not there has been an active intellectual engagement with the mandatory criteria (or the submission or representation) (see, for example, Tickner v Chapman (1995) 57 FCR 451 at [39]; Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [47] and, see generally, Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248 at [63]-[66]). Neither of the Minister’s letters dated 2 May 2012 and 6 July 2012 made any reference at all to that aspect of the appellant’s complaint which concerned Mr Sellars’ apparent conflict of interest (see generally Bat Advocacy at [44]-[48] and MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [19] per Flick and Jagot JJ). Nor is there any indication in any of the internal material obtained by the appellant under the FOI Act and put in evidence by him that that complaint was ever addressed by the ACLEI. As noted above, that issue figured prominently in the appellant’s complaint to the Minister concerning the alleged mishandling of his complaints by the ACLEI. Whatever view is taken as to whether the evidence as it then stood supported the appellant’s claim that the Minister had not considered all the material provided to him by the appellant, there is nothing in the evidence below to suggest that this particular aspect of the appellant’s case was the subject of any active intellectual engagement by the Minister.