FEDERAL COURT OF AUSTRALIA

Ugur v Commissioner of Australian Federal Police [2010] FCA 303

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent's costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             On 26 May 2008 the applicant sent a letter to the Australian Federal Police (AFP) requesting access to, and a copy of, all the files held by the AFP concerning documents related to his personal affairs (the FOI request). That application was made under the Freedom of Information Act 1982 (Cth). Shortly thereafter the AFP provided the applicant with all the documents it considered relevant to the applicant's request. In doing so, it made a determination that the applicant had been provided with all relevant documents. On 12 September 2008 that determination was affirmed on internal review. The applicant applied to the Administrative Appeals Tribunal for review of the decision to affirm the determination. The Tribunal affirmed the decision on 4 June 2009: Ugur v Australian Federal Police [2009] AATA 405. The applicant applies to this Court for judicial review of the AAT’s decision.

The facts

2                                             The applicant has lived in Australia since 1990. It appears not to be in issue that he was in immigration detention for five years, is a permanent resident and is currently studying. The FOI request was apparently made because the applicant believed that the AFP is and has been monitoring him for some time. When the AFP provided documents responsive to the FOI request, some information was deleted from the documents on the basis that the AFP considered it irrelevant.

The Tribunal decision

3                                             The Tribunal heard the application for review on 29 May 2009. In the reasons for its decision, the Tribunal asked itself the following questions at [9]:

a) Whether all reasonable steps have been taken by the respondent to locate the documents subject to the request: s24A FOI Act; and

b) Whether parts of documents located are exempt from production because they are irrelevant: s 22 FOI Act.

4                                             In answering the first question, the Tribunal first considered whether further documents exist. It addressed one of the applicant’s points of concern, namely that a certain search result identified as 'Annexure C' to the affidavit of Ms Jacqueline Matan dated 19 December 2008, was omitted as an annexure to the affidavit in question. Ms Matan was at the relevant time the Team Leader of the AFP's Freedom of Information Legal Team. The Tribunal found at [12] that the omission of the annexure was not in "any way sinister; simply, an error was made by the deponent in failing to annex it to her affidavit". The Tribunal proceeded to conduct an inquiry into whether any documents to which access should have been given to the applicant existed and whether there was any ground on which the AFP might have denied the applicant access to them. It referred to the fact that on two separate occasions an AFP officer not previously involved in dealing with the FOI request conducted further searches for documents related to the applicant’s personal affairs. One further document was identified, and subsequently released to the applicant to the extent that it related to his request. The Tribunal concluded at [19] that reasonable steps were taken to find all the documents the subject of the FOI request, and found at [20] that the documents the applicant claimed he had not been provided did not exist.

5                                             In answering the second question, the Tribunal viewed an un-redacted version of all the documents provided to the applicant, and satisfied itself at [23] that the deleted information from the material provided to the applicant could reasonably be regarded as irrelevant to the applicant’s request.

The application to this Court

6                                             The applicant applied to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the decision of the Tribunal in the application filed 6 July 2009. He was unrepresented at all times.

7                                             The applicant advanced a number of grounds on which he sought review of the Tribunal’s decision. These grounds were, in terms:

1          Section 5 of the Administrative Decisions (Judicial Review) Act 1977 states that a breach of the rules of natural justice occurred in the connection with the making of the decision

2          The decision maker erred that procedures that were required by law to be observed in connection with the making decision were not observed.

3          The S. Member erred that the decision was induced or effected by fraud and that there was no evidence or other material to justify the making decision.

4          That the decision was not authorized [sic] by enactment in pursuance of which it was purported to be made.

5          That the making of the decision was an improper exercise of the conferred by the enactment in pursuance of which it was purported to be made.

6          That the decision maker must take relevant considerations into account when making the decision, cannot take account of irrelevant considerations.

7          That the decision involved an error of law, whether or not the error appears on the record of the decision.

8          Conduct that is being engaged in (or is proposed to be engaged in) by a decision maker for the purpose of making a decision.

9          Irrationality and proportionality. Wednesbury case. “If a decision a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere… but to prove a case of that kind would require something overwhelming.”

8                                             These grounds were particularised with reference to alleged breaches of principles of natural justice, including, inter alia, allegations of bias and failure to take into account relevant factors, as well as allegations of fabricated evidence.

9                                             In his application, the applicant claimed as follows:

1          An order that the decision of the AAT dated 4 June 2009 (AATA 405) be set aside.

2          An order that the respondent release full all documents and the information concerning me.

3          An order that the respondent to arrange a written consent order enabling me to seek legal advice.

10                                          In his submissions filed prior to the final hearing, the applicant sought to vary the orders claimed in his application, instead claiming:

1          An order that the decision of the AAT dated 4 June 2009 (AATA 405) be set aside.

2          An order that the respondent will conduct a sufficient search and provide me with the correct result and the respondent release all documents and information concerning me.

3          An order that the respondent arrange a written consent order enabling me to seek legal advice.

4          An order that the respondent stop abusing me without my permission and knowledge and allow me to cross-examine its evidence and witnesses against me.

11                                          The applicant contends that his reputation has been diminished, and that he was "badly affected" by the decisions of the AFP and the Tribunal. He believes he has been treated unfairly and that "[his] case is similar to the Dr Haneef case". He submitted that he has "been subject to cruel and inhuman treatment without being formally charged and without being granted a fair trial". He told the Tribunal (at [T30]) that he sent a fax to the AFP on 23 June 2005 saying that he was mistreated while in detention and as a result was hospitalised in Bankstown Hospital. He contends in this Court that he was not given a reasonable opportunity to present his case before the Tribunal, and "was not aware of the substance of adverse documentary information and I would have conducted my case differently if I had become aware of that material". At both directions hearings and the final hearing, he stated that he believed that the AFP was monitoring him and preventing him from obtaining legal advice from an independent body.

A procedural issue – the interaction between the ADJR Act and AAT Act

12                                          As noted earlier, the application is made under the ADJR Act. The respondent submitted that the appropriate course for the applicant’s challenge to the Tribunal’s decision is to institute an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant disputed that his application was misconceived, submitting that "the respondent has no right to [restrict] the Judicial Review of my case without [providing] any probative adverse evidence. This is unlawful..."

13                                          Section 10(2)(b) of the ADJR Act states, relevantly:

The Federal Court… may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

…

(ii)                That adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court… of that decision, conduct or failure.

14                                          Section 44(1) of the AAT Act states, relevantly:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

15                                          The Court does have jurisdiction, speaking at a level of generalisation, to review decisions of the Tribunal under the ADJR Act. The real issue is whether the Court should exercise its discretion under s 10(2)(b)(ii) of the ADJR Act to dismiss the application on the ground that adequate provision is made by s 44 of the AAT Act for review, or, as invited by the respondent, treat the application as an appeal under that latter section.

16                                          The interaction of the ADJR Act and the AAT Act was considered by von Doussa J in Pancontinental Mining Ltd v Burns (1994) 124 ALR 471 at 482:-

There is nothing in the provisions of the ADJR Act which would exclude the Tribunal from the scope of review under ss 5 and 6. In particular, decisions of the Tribunal are not included in the class of decisions which are not subject to review set out in Schedule 1 of the Act. The ADJR Act by its terms directs that the ADJR Act "has effect notwithstanding anything contained in any law in force at the commencement of this Act": s 4. Sections 44 and 45 of the AAT Act were laws in force at the commencement of the ADJR Act. Moreover s 10(1) of the ADJR Act provides expressly that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that a person has to seek review. By s 10(3) "review" includes a review by way of appeal. Section 10(2) then makes provision for cases where more than one right of review exists. In my opinion on their proper construction ss 44 and 45 of the AAT Act do not prevent a party to proceedings before the Tribunal resorting to the ADJR Act, although to do so is likely to run the party seeking review headlong into s 10(2)(b). It is for this reason that a party to proceedings before the AAT aggrieved by a decision of the Tribunal will almost invariably appeal under s 44 of the AAT Act.

17                                          In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483, Davies J held at 484 that an application brought under the ADJR Act to review a decision of the Tribunal was misconceived, and s 44 of the AAT Act was the appropriate avenue of appeal. However, given that the respondents in that case did not object to the application being brought under the ADJR Act, his Honour heard the application, and did not refer to s 10 of the ADJR Act in his reasons for judgment. The view expressed by Davies J has subsequently been "modified": Combe v Inspector General in Bankruptcy [2005] FCA 1101 per Bennett J at [49]. In Combe, Bennett J exercised the discretion available to her under s 10(2)(b)(ii) of the ADJR Act to decline relief under that Act where application was also made under s 44 of the AAT Act. Her Honour in turn dismissed an appeal against a decision of the AAT affirming the decision of the Inspector-General in Bankruptcy to confirm a notice of objection to the discharge from bankruptcy of the applicant. In exercising the discretion, Bennett J considered the decision of French J (as his Honour then was) in Duncan v Fayle (2004) 138 FCR 510. In Duncan, French J allowed an appeal against the decision of Phipps FM to uphold the decision of the Registrar of the Federal Magistrates Court to refuse to accept an application for judicial review under the ADJR Act of a decision of the AAT dismissing an application to the AAT as frivolous or vexatious. The Federal Magistrates Court had relied on Tuite in dismissing the application brought under the ADJR Act for review of a Tribunal decision, as there was a specific remedy available under s 44 of the AAT Act. Justice French held at 518-9 that:

What [Tuite] does demonstrate is that his Honour was not bound to decline to hear the application… in my respectful opinion it is too strong a generalisation to characterise the institution of proceedings under the ADJR Act seeking review of a decision of the AAT as 'misconceived'. The jurisdiction conferred upon this Court and the Federal Magistrates Court by s 5 of the ADJR Act is general in its terms and plainly applicable to Tribunal decisions… [s 10] make[s] clear that the rights conferred by s5 are ‘additional.’  The discretion to decline relief under s10 is a discretion.  It is not to be fettered by judge made rules, albeit its exercise in particular classes of case may be informed by common approaches and considerations.  Being a discretion it is, in my opinion, inappropriate to apply it proleptically to strike out an application under the ADJR Act as frivolous or vexatious on its face by reason only of the availability of an alternative mechanism for review.

18                                          I am not bound to decline to hear the application brought under the ADJR Act despite the availability of an alternative avenue of relief in the AAT Act.

19                                          At the hearing the respondent proposed treating the application, brought as it was under the ADJR Act, as if it were brought under s 44 of the AAT Act. It has been said that "[g]enerally speaking the words 'question of law' in s 44 of the AAT Act encompass the grounds available under s 5 of the ADJR Act": Duncan v Hotop [2004] FCA 274 per RD Nicholson J at [10]. In my view, given the circumstances of the case, the relief claimed, the fact that the applicant is unrepresented and the fact the application should be dismissed on substantive grounds, neither party is prejudiced if the application for review is under the ADJR Act. I therefore propose to do so. In other circumstances, s 10 of the ADJR Act may have loomed larger.

Consideration

Ground one – the issue of procedural fairness

20                                          It is convenient to summarise the applicant's contentions under this ground of appeal as follows:

1.                  The Tribunal did not inform him of s 24A of the FOI Act. As a result, he was not informed of the case against him.

2.                  The Tribunal was biased, in that:

(a)                It twice refused his request for a directions hearing, a request made after the respondent failed to reply to his affidavit.

(b)               It refused to make orders enabling him to seek legal advice.

(c)                It refused his request for an adjournment.

(d)               It helped the respondent "cover up [its] misconduct".

(e)                It asked him to discontinue the proceedings, citing as a reason the further searches conducted by the respondent of its databases.

(f)                 It structured the hearing "to help… Ms Matan avoid examination".

3.                  "When legal advice was offered intentionally, it was last minute". This appears to be a reference to the fact the Tribunal arranged an appointment for the applicant with Legal Aid on Wednesday 27 May 2009, two days before the hearing before the Tribunal. The applicant told the Tribunal he cancelled the appointment because he "had information that Legal Aid solicitor fabricated the first record about me… I couldn't take any legal advice from… Legal Aid because this is a conflict of interest". He later told the Tribunal that it was his understanding that "Legal Aid organised… the New South Wales government to cover up the human rights abuse in New South Wales… Legal Aid… [is] there to protect certain areas of government".

4.                  The Tribunal did not inform him that Ms Matan would give evidence at the hearing. The applicant alleges this was in the context of further evidentiary discrepancies.

5.                  The Tribunal was aware that the respondent did not conduct an accurate search of its databases.

6.                  The Tribunal treated him unfairly during the hearing.

7.                  The Tribunal shocked him at the hearing and as a result he was unable to prosecute his case properly.

8.                  The Tribunal did not give him the opportunity to be heard on, in particular:-

(i)                  Section 24A of the FOI Act.

(ii)                The orders he sought which he believed would enable him to seek legal advice.

(iii)               The fact Ms Matan would give evidence.

(iv)              The respondent's solicitor misleading the Tribunal.

21                                          The first of the applicant's contentions included in his allegation of denial of natural justice is that the Tribunal failed to inform him of the case against him, namely the existence or effect of s 24A of the FOI Act. That section is entitled 'Requests may be refused if documents cannot be found or do not exist' and states:-

An agency or Minister may refuse a request for access to a document if:

(a) all reasonable steps have been taken to find the document; and

(b) the agency or Minister is satisfied that the document:

(i) is in the agency’s or Minister’s possession but cannot be found; or

(ii) does not exist.

22                                          The respondent submits the Tribunal had no obligation to invite comment on s 24A of the FOI Act. The respondent submits a piece of legislation cannot, in itself, contain adverse material for the purpose of principles of procedural fairness such as those in Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1, Kioa v West (1985) 159 CLR 550 and Re Pergamon Press Ltd [1970] 3 All ER 535 as relied upon by the applicant.

23                                          I have reviewed the transcript of the hearing before the Tribunal. Although s 24A was not directly referred to by either the respondent or the Tribunal during the course of the hearing, it is abundantly clear from the transcript that the case advanced by the respondent was that all the documents relevant to the FOI request had been provided, and that no further documents existed. Indeed, in an exchange with the applicant (at [T13]), the Tribunal characterised the proceedings before it by saying "there's no issue of defending yourself about anything. You've asked for documents from the Australian Federal Police, they've said that they've provided everything that they've got". It is clear from this statement that the Tribunal was bringing to the applicant's attention the critical issue upon which its decision would turn, namely the AFP's contention that the documents the applicant sought had been searched for and provided to him. Indeed, the application for review by the Tribunal was itself grounded in the applicant's dispute with the AFP over whether all documents had been provided, and why they may not have been. For these reasons, the claim that the applicant was not told of the case against him, specifically that he was not expressly told of the statutory provision that "an agency… may refuse a request for access to a document if all reasonable steps have been taken to find the document and the agency… is satisfied that the document does not exist", must fail.

24                                          The applicant makes a number of assertions of bias against the Tribunal. In essence, these assertions appear to stem from the applicant’s dissatisfaction at the unwillingness of the Tribunal to adopt certain procedures he requested for the conduct of the hearing. I have examined the submissions made by the applicant in respect of this matter and can find, on the limited evidence relied upon by the applicant, nothing extraordinary in the manner in which the Tribunal approached the conduct of the hearing. The submissions of the applicant, such as "there was some agreement between the member and the respondent to cover up [the respondent's] misconduct", are not made out by the evidence.

25                                          The applicant says that he was not aware that Ms Matan would give evidence at the hearing. His concern appears to be that in addition to her affidavits dated 19 December 2008 and 20 March 2009, Ms Matan gave oral evidence by telephone, and he was not prepared to cross-examine her, saying that he needed a solicitor to do so. From the transcript, the applicant appeared to accept that the Tribunal arranged an appointment for him with Legal Aid, an appointment he cancelled for the reasons given in para [20(3)] above. Ms Matan's evidence-in-chief before the Tribunal canvassed the nature of the AFP's data recording systems (particularly the difference between a case note entry and a case management system) and the searches she undertook under the applicant's name in response to the FOI request. The substance of Mr Ugur's cross-examination was a line of questioning inquiring why Ms Matan did not append annexure C, a true copy of the results of the search of the AFP's database she undertook under the applicant's name, to her first affidavit. Ms Matan was unable to assist the Tribunal in this regard, as she did not have her affidavits with her. However, when asked by the Tribunal whether "the deficiency in this affidavit was what resulted in your supplementary affidavit", she said "I believe so". The Tribunal said that she had said in her supplementary affidavit that "due to an administrative error, the result of these searches, described in [the first affidavit], were not attached as annexure C. As a consequence of that omission, on 19 March 2009 I again caused searches to be conducted…" As stated above at para [4], the Tribunal found that the omission was not in "any way sinister", and was simply an administrative error. It is tolerably clear that the applicant was given the opportunity to obtain legal advice, an opportunity he rejected, and an opportunity to explore in cross-examination the issue that vexed him, namely the omission of annexure C from Ms Matan's second affidavit. This aspect of the applicant's case is not made out.

26                                          The applicant claims that the Tribunal had "knowledge that the respondent intentionally did not make an accurate search". This claim is without merit. The reasons for its decision clearly show that the Tribunal considered the evidence before it and concluded that the AFP had taken all reasonable steps to find the documents the subject of the FOI request.

27                                          The applicant claims that the Tribunal treated him unfairly, and that he was unable to conduct his case the way he would have liked because of the actions of the Tribunal. In particular, he claims that the respondent refused his entreaties for a consent order allowing him to seek legal advice, and the Tribunal refused to make orders to that effect. In support of this contention, he relies upon Dietrich v The Queen (1992) 177 CLR 292. There is, in my opinion, nothing untoward in the way the Tribunal conducted the hearing. The respondent is not under an obligation to agree to consent orders, and it would have been inappropriate for the Tribunal to make an order allowing the applicant to seek legal advice. Such an order was, in any event, entirely unnecessary. This ground must also fail.

Ground two – procedures required by law were not observed

28                                          The applicant contends that the Tribunal erred in not adopting procedures required by law. In particular, the applicant argues the Tribunal should have:

1.                  Asked the respondent to take all reasonable steps to locate the materials he sought.

2.                  Asked the respondent to reply to his affidavit dated 8 April 2009.

3.                  Held a directions hearing to organise witnesses to be examined and the time at which they were to be examined.

4.                  Asked the respondent why it misled the Tribunal in paragraphs 4 and 5 of an affidavit it relied upon dated 19 December 2009.

29                                          Apart from allegations that the respondent misled the Tribunal, allegations for which no evidence is relied upon, this element of the applicant's claim is grounded on the applicant's dissatisfaction with the manner in which the Tribunal conducted the hearing and the conclusions it reached. In particular, the applicant reiterates his belief that the respondent did not "adequately search its records systems". My conclusions on this aspect of the claim are as expressed at [27].

Ground three – the Tribunal's decision was induced by fraud, and there was no evidence to justify the decision made

30                                          The applicant has consistently contended before both the Tribunal and this Court that the affidavits of Ms Matan sworn 19 December 2008 and 20 March 2009 are incorrect, in that they state that all relevant documents were provided to the applicant yet the first affidavit omitted a section identified as 'annexure C'. Yet this concern was addressed in the hearing before the Tribunal, and in the Tribunal's reasons for judgment. Ms Matan's first affidavit was indeed incorrect in stating that it contained an annexure which it did not. The AFP described this is an "administrative error", and the Tribunal accepted this proposition at [12]. The Tribunal found that Ms Matan's subsequent affidavit clearly sought to remedy this mistake by annexing the results of a new search which brought the search information completely up to date. The applicant contends that the respondent "intentionally tampered with" the searches, and that it is currently concealing documents concerning him and corrupting its records. These allegations of fraud on the behalf of the Tribunal are serious yet do not rely on a scintilla of evidence. This aspect of the applicant's claim must fail.

Grounds four through eight– the decision was not authorised by the enactment under which it was made; the making of the decision was an improper exercise of power; relevant and irrelevant considerations; the decision involved an error of law; 'conduct that is being engaged in, or is proposed to be engaged in, by a decision maker for the purpose of making a decision'

31                                          The applicant did not particularise grounds four through eight inclusive by reference to evidence. Grounds four through seven appear to raise the improper exercise of power, the decision not being authorised by enactment, the failure to take into account relevant considerations and errors of law. The issue that the eighth ground attempts to raise is unclear. Despite the fact the applicant did not direct me to specific evidence, I have reviewed the application, submissions and transcript of the hearing before the Tribunal in consideration of these allegations and can find no basis for them. These grounds must fail.

Ground nine – the decision is so unreasonable that no reasonable decision maker could have made it

32                                          The final contention of Wednesbury unreasonableness is not particularised and clearly unsustainable given the detailed and cogent reasons of the Tribunal in respect of its decision to uphold the affirmed determination of the AFP.

Conclusion

33                                          For these reasons, the decision of the AAT should not be set aside. The application should be dismissed with costs.

Associate:

Dated:         20 May 2010