Patel v Australian Information Commissioner - [2020] FCCA 3103

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v AUSTRALIAN INFORMATION COMMISSIONER

[2020] FCCA 3103

Catchwords:
ADMINISTRATIVE LAW – Judicial review of a decision of the Australian Information Commissioner – refusal to undertake an Information Commissioner review – whether the process followed was procedurally unfair or was otherwise contrary to law considered – no reviewable legal error.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.3

Freedom of Information Act 1982 (Cth), ss.24A, 54W, 55B, 93A

Cases cited:

Minister for Immigration v SZGUR (2011) 241 CLR 594

Ogawa v Australian Information Commissioner [2014] FCA 229

Patel v Australian Information Commissioner & Anor [2017] FCCA 1515

Powell v Australian Information Commissioner [2019] FCCA 39

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

Applicant:

PRATHAMESH PRABHUDAS PATEL

Respondent:

AUSTRALIAN INFORMATION COMMISSIONER

File Number:

SYG 1076 of 2019

Judgment of:

Judge Driver

Hearing dates:	30 October 2019, 13 November 2020
Date of last submission:	9 December 2020

Delivered at:

Sydney

Delivered on:

14 December 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms K Nguyen of Holding Redlich

ORDERS

The application lodged on 23 April 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1076 of 2019

PRATHAMESH PRABHUDAS PATEL

Applicant

And

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

REASONS FOR JUDGMENT

Introduction and background

The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) provides for the judicial review by this Court and the Federal Court of many decisions of an administrative character. By an application under the ADJR Act signed on 17 April 2019 and lodged with the registry on 23 April 2019[1] the applicant (Mr Patel) seeks judicial review of a decision of the Australian Information Commissioner (Commissioner) made on 26 March 2019. It is common ground that Mr Patel does not require an extension of time for his application despite the fact that it also refers to decisions leading up to the decision subject to review made by Mr Alan Teves, as delegate of the Commissioner (the delegate).
[1] filed on 3 May 2019
Mr Patel asserts a breach of the rules of natural justice (procedural fairness) in connection with the making of the decision, including a refusal to hold a public hearing. Mr Patel also asserts that the decision is otherwise contrary to law because it was made to restrict the application of s.54W of the Freedom of Information Act 1982 (Cth) (FOI Act) for “an unknown reason to prevent the course of justice”.
The background to this matter is somewhat lengthy and there have been earlier proceedings in this Court.[2]
[2] Patel v Australian Information Commissioner & Anor [2017] FCCA 1515
Briefly, on 29 June 2001, Mr Patel, then a citizen of India, lodged an application for a student visa at the Australian High Commission in New Delhi (High Commission). He apparently sent a number of original documents, including his Indian passport to the High Commission.
On 20 September 2001, a senior migration officer at the High Commission wrote to Mr Patel to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3103
Decision Date: 14 December 2020

CaseChat Overview and Summary

The applicant, Mr. Patel, sought judicial review of a decision by the Australian Information Commissioner (the Commissioner) to refuse to undertake an Information Commissioner review. The dispute concerned whether the Commissioner's refusal to conduct the review was procedurally unfair or otherwise contrary to law. The matter came before Judge Driver of the Federal Court of Australia.

The central legal issue before the Court was whether the Commissioner's decision to refuse to undertake an Information Commissioner review constituted a reviewable legal error. This required the Court to consider the procedural fairness afforded to Mr. Patel in the lead-up to the Commissioner's decision and whether the decision itself was otherwise vitiated by an error of law.

Judge Driver found that the Commissioner's decision was not affected by any reviewable legal error. The Court concluded that the process followed by the Commissioner in reaching its decision was not procedurally unfair and that the decision was otherwise made in accordance with the law. Consequently, the application for judicial review was dismissed.

Orders