Patel v Australian Information Commissioner

This matter concerned an application for review of a decision made by the Australian Information Commissioner (IC). The IC's delegate had decided not to undertake or continue an Information Commissioner review on the basis that the applicant's review application was lacking in substance, pursuant to sub-section 54W(a)(i) of the *Freedom of Information Act 1982* (Cth). The applicant sought an order for review under section 11 of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) and an extension of time to bring the substantive application.

The primary legal issue before the Court was whether the IC's delegate had erred in finding that the applicant's application for review lacked substance, and consequently, whether the applicant had sufficient merits for reinstatement of his application for review. This involved considering whether the delegate's satisfaction that the application was lacking in substance was reasonably open on the material before her, and whether there were reasonable grounds for the applicant's claim that would justify an extension of time under the *Administrative Decisions (Judicial Review) Act 1977* (Cth).

Judge Smith reasoned that the delegate's conclusion that the application lacked substance was open to her. The delegate had explained that the relevant departmental file was destroyed in 2003, and the applicant's submissions did not provide cause to consider otherwise. The Court noted that the applicant had been given multiple opportunities to address the issues, but his submissions did not offer evidence of corruption or forgery, nor did they suggest such evidence might be forthcoming. The Court found that the applicant's assertion that the documents had not been destroyed, and that the document indicating their destruction was forged, formed the basis of his application, and it was open to the delegate to be satisfied that this lacked substance. Consequently, the Court concluded there was no reasonable prospect of the applicant succeeding in his application, and it would be futile to set aside the orders made in his absence.

The application for reinstatement was dismissed with costs.