Patel v Australian Information Commissioner
[2017] FCCA 1515
•21 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v AUSTRALIAN INFORMATION COMMISSIONER & ANOR | [2017] FCCA 1515 |
| Catchwords: ADMINISTRATIVE LAW – Review of decision of Australian Information Commissioner – whether the application lacked substance – whether the application for review was correctly assessed. PRACTICE & PROCEDURE – Application for reinstatement involving consideration of extension of time application for an order for review under s.11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether the applicant’s application has sufficient merits for reinstatement – no reasonable grounds – application for reinstatement dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.11 Freedom of Information Act 1982 (Cth), ss.54W, 55G, Pt.7 |
| Applicant: | PRATHAMESH PRABHUDAS PATEL |
| First Respondent: | AUSTRALIAN INFORMATION COMMISSIONER |
| Second Respondent: | SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 838 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 June 2017 |
| Date of Last Submission: | 2 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the First Respondent: | Holding Redlich |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 838 of 2017
| PRATHAMESH PRABHUDAS PATEL |
Applicant
And
| AUSTRALIAN INFORMATION COMMISSIONER |
First Respondent
| SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
On 30 March 2017, the applicant lodged an application for review of a decision of the Office of the Australian Information Commissioner (OAIC). The issue for determination arises from the fact that the proceedings were dismissed when the applicant failed to appear at the first directions hearing of the matter. The application before the Court is for an order setting aside that dismissal.
There are relevantly two issues: first, whether the applicant has a reasonable excuse for his failure to appear and, secondly, whether there is sufficient merit in the substantive proceedings.
I am satisfied that there was a good reason for the applicant’s failure to attend at the directions hearing. The applicant lives in Leeton, New South Wales, a town more than 5 hours by road from Sydney. The applicant travelled by train to Sydney in order to attend the directions hearing, but the train was delayed by three hours and he arrived at Court too late to appear.
The determinative issue then is whether there is sufficient merit in the substantive application. Given the reasons for the applicant’s failure to attend, those merits do not have to be substantial to justify an order setting aside the order dismissing the proceedings.
Before turning to the merits, I note that there is no other factor that is of any significant weight in this matter. There would be no real prejudice to either respondent if the orders were set aside other than the costs that would be incurred in the further conduct of the proceedings. The applicant has not pointed to any detriment that he might suffer other than the inability to have his case determined at a final hearing. As will be seen below, the applicant did refer to a claim against him by Centrelink. Any impact of these proceedings on that claim is intimately bound up in the merits of the arguments raised in these proceedings. For that reason, the only real consideration of any weight is the merit of the application for review. In order to assess those merits, it is necessary to go back briefly to the events that have brought about the proceedings.
On 29 June 2001, the applicant, a citizen of India, lodged an application for a student visa at the Australian High Commission in New Delhi. It appears that, in support of that application, he sent a number of original documents including his passport to the High Commission.
On 20 September 2001, a senior migration officer at the High Commission wrote to the applicant to inform him that his visa application had been refused. Shortly afterwards, the applicant received an envelope from the High Commission which, he says, ought to have contained the original documents lodged in support of his visa application, but was empty.
The applicant took a number of steps to try to recover his documents without success. Amongst other things, he sought assurances that his passport had not been misused. On 27 December 2001, the applicant emailed the International Office of Charles Sturt University concerning his missing documents. This email was forwarded to the Hon. Philip Ruddock MP, the then Minister for Immigration and Multicultural Affairs. In this email, the applicant also alleged that there were corrupt staff members in the visa office of the High Commission.
Some time passed. The applicant must have obtained a new passport because he is now in Australia. He says that he returned here in July 2009 as a permanent resident.
On 1 February 2016, the applicant made a request under the Freedom of Information Act 1982 (Cth) (FOI Act) to the Secretary of the Department of Immigration (Department) for “Original Student visa decision 2001, communication between Minister’s officer & New Delhi High Commission, communication between Mr Abdul Rizvi & New Delhi High Commission, what document was sent out in envelope sent on 15/10/2001 which was received empty.”
The applicant says that this request was brought about by a demand received by him from Centrelink claiming the repayment of benefits to which he was not entitled. The applicant says that he did not receive any benefits and suspects that someone has used his passport in order to obtain benefits in his name.
On 8 April 2016, an authorised officer of the Department wrote to the applicant to inform him that his request was refused. The reasons for the decision disclose that the officer had identified two documents that responded to the request: “Departmental file 2001/004352” and “IRIS system printout 2001/004352”. The officer refused access to the first of these because it did not exist. The reasons explained the basis for that conclusion:
On 01 March 2016, I sent an email to Overseas Registry Section requesting departmental file 2001/004352. On the same day, Overseas Registry Section forwarded my file request to the overseas post in New Delhi.
On 02 March 2016, I received an email from the overseas post in New Delhi advising that departmental file 2001/004352 was destroyed on 20 September 2003.
Departmental file 2001/004352 does not exist. On this basis I am refusing you access to departmental file 2001/004352 under section 24A of the FOI Act.
On 17 June 2016, the applicant applied to the Information Commissioner (IC) for review of that decision under Pt.7 of the FOI Act. Initially, the applicant only contested the finding that the departmental file did not exist. Later, however, he also contested the decision not to allow access to the IRIS system printout.
On 2 February 2017, the Secretary made a revised decision under s.55G of the FOI Act and released the whole of the IRIS system document; however, access to the departmental file was still refused on the basis that it no longer existed.
On 14 February 2017, a delegate of the IC decided not to undertake a review of the Secretary’s decision on the basis that the application was lacking in substance. The delegate explained:
There appears to be no evidence before the OAIC to support the view that there are documents that fall within the scope of your FOI request and that are held by the Department. On that basis and as a delegate of the Information Commissioner, I have decided not to continue to undertake a review of your application under s 54W(a)(ii) of the FOI Act. I confirm that this IC review is now closed.
…
On 21 March 2017, the applicant filed an application in this Court for review of the delegate’s decision. The application is not drafted with any great clarity. Two central complaints appear to be made:
(i)that the IRIS system printout provided by the Secretary was forged; and
(ii)that the applicant did not ask for access to the department file, but rather, for access to the visa decision letter.
There is no apparent basis for the distinction drawn in the second of these grounds. It is obvious that a decision letter in respect of a visa application will ordinarily be contained in the file kept in relation to that application. There is no reason to suspect that that was not the case here.
The applicant sought orders including an order that certain information be released. The Office of the Australian Information Commissioner and the Department of Immigration and Border Protection were both named as respondents to the application.
The application was supported by an affidavit by the applicant to which was annexed a large number of documents. The printout of the IRIS system file which had been produced by the Secretary was included. I will return to that document in due course.
The application was listed for a first court date on 21 April 2017 and, as I have observed, the applicant did not appear and the matter was dismissed. Neither respondent appeared at the first court date. That was because neither of them had been served with the application and were unaware of either the matter, or the fact that it was listed before the Court.
On 26 April 2017, the applicant filed an application in a case seeking reinstatement of the proceedings. At the first return of that application, orders were made naming the IC as first respondent in the place of the Office of the Information Commissioner, and the Secretary of the Department of Immigration and Border Protection as the second respondent, in place of the Department. I also ordered that the applicant file a document identifying the precise errors that he says affected the decision of the IC dated 14 February 2017, and an affidavit explaining the reason for his delay in commencing these proceedings.
The reason for which the applicant was ordered to file an affidavit explaining his delay is that the application was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and was filed outside the time prescribed by s.11 of that Act. For that reason, in determining whether to set aside the order dismissing the application, it is necessary to consider the prospects of the applicant obtaining an order extending the time for filing the application in the first place.
In his affidavit, the applicant said the following about the reasons for the delay in filing his application:
1.Email from office of the information commissioner review decision came to my email address [email protected] on 14/02/2017 at 10.59A.M.
2.I read email after 5.30P.M. as I was working in dayshift 6A.M. to 2P.M., I also have training after work so I went home late. I do not keep any mobile phone at all at my work time.
3.I applied for the review by post from India to The Federal Court Registry on 14/03/2017 at 10.18A.M. Indian standard time, which was received by registry on 21/03/2017.
4.I also submit receipt of lndian post for support of my claim with affidavit.
5.I applied from India as I did not have certified documents as I keep all original documents related to this matter in India.
The first respondent accepts the applicant’s evidence as a reasonable explanation for delay, but the second respondent does not. I agree with the second respondent that there is in fact no explanation for the delay in commencing proceedings. The applicant received the decision on the day it was made, but did not do anything until the final day for filing and then sent the application by mail from overseas. That said, however, the delay is not significant and the prospects of an extension of time will turn on the merit of the grounds for the substantive application. For that reason, I turn to those grounds.
The applicant’s grounds are explained in a document with the subject matter “list of precise errors affected the decision of The Information Dated 14 February 2017”. The applicant asserts in that document that the IC did not consider his application for review according to the FOI Act and did not refer to the details of his claim submitted to the IC. However, the essence of the document is contained in the following paragraph:
It also will satisfy to Respected Sir that there is/was existence of documents requested by me and they are in possession of Government authorities somewhere or Destroyed at some stage. It is my fundamental right to have reflection of those facts in my decision letter which is not at all at any stage.
The applicant also alleges that the IRIS system printout produced by the Secretary was forged. The relevant portion of that document stated (without alteration):
OFH – request recd – confirmed file has been destroyed.
OFH came back requesting for case dump – request fwdd to Upasana in CST for action.
===============> RITU ARORA (RITUA) 03-MAR-2016
Shadow file received from PMO-SF with an advice that the file should not be destored for next one year starting from today (20/05/03). File forwarded to Student Team Leader for further action.
=========> NARENDRA ARYA (NARENDRA) 29-MAY-2003
The decision the subject of these proceedings was made by the IC pursuant to sub-s.54W(a)(i) of the FOI Act, in particular because the delegate was satisfied that the application was lacking in substance. Section 54W provides:
Decision to review—discretion not to review
The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:
(a) the Information Commissioner is satisfied of any of the following:
(i) the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
…
In the delegate’s letter dated 14 February 2017 to the applicant, the delegate explained how she reached that state of satisfaction. In doing so, the delegate referred to the correspondence between the OAIC and the applicant, including the various submissions made by the applicant and explained that “the evidence indicates that document 1, which is Departmental file 2001/004352, was destroyed in 2003 and [the applicant’s] submissions do not give me cause to consider otherwise.”
Bearing in mind that I am not determining this matter on a final basis, I conclude that there is no reasonable prospect of the applicant succeeding in his application. That is for the following reasons:
a)the applicant was given a number of opportunities to address the issues in his application including the possibility that the IC would decide not to continue the review;
b)the applicant’s submissions were expressly referred to in the delegate’s letter to the applicant in which her decision was explained;
c)there is no evidence at all to support the continued assertion that there was corruption or forgery in the Department and nothing to suggest that any such evidence might be forthcoming;
d)more importantly, the conclusion that the relevant documents had been destroyed, was open to the delegate on the basis of the information before her; and
e)as the application was based on the assertion that the documents had not been destroyed (and that the document saying that they had been was forged) it was open to the delegate to be satisfied that the application to the IC lacked substance.
Neither the grounds in the application nor anything in the material before the Court raise any reasonable argument for the relief claimed. It is unlikely in those circumstances that an order would be made under s 11 of the ADJR Act extending time for bringing the substantive application and even if it were, the substantive proceedings would be most likely to fail. For that reason, although there was a reasonable excuse for the applicant’s failure to attend at the first court date, I consider that it would be futile to set aside the orders made in the applicant’s absence and so conclude that the application should be dismissed. There is no reason why the applicant should not pay the costs of the application.
The application will be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 21 July 2017
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