Godla v Commissioner of Police, New South Wales Police Force

Federal Court of Australia|2021-12-13|Before: Mr J, Perry J

The application for an extension of time within which to appeal filed on 11 August 2020 be dismissed.
The applicant pay the respondents' costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This is an application for an extension of time within which to appeal from the decision of Godla v Commissioner of Police, New South Wales Police Force [2020] FCA 489 dismissing an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). By the judicial review application, the applicant challenged various decisions related to or arising from his inability to travel overseas lawfully without police permission because he is registered on the NSW Child Protection Register (the Child Protection Register) established by s 19 of the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). 2 The extension of time is opposed by the first, second and third respondents, being respectively, the Commissioner of Police, New South Wales Police Force (who made various decisions via NSW police officers, as his agents) (the NSW Police Commissioner), the Commonwealth as representative of the Australian Federal Police (the AFP) and the Minister for Foreign Affairs (the Minister). 3 For the reasons set out below, the application for an extension of time should be dismissed with costs given that the proposed appeal is hopeless. In those circumstances, it is unnecessary to rule on the question of whether the so-called notice to produce served by the applicant on the NSW Police Commissioner with respect to the proceedings at first instance and on appeal should be set aside, as the NSW Police Commissioner contends. Nor is it necessary to rule upon the applicant's amended interlocutory application filed on 13 August 2020 seeking leave (among other things) to file an amended originating application.

BACKGROUND 4 The background is set out in the primary decision and may be summarised briefly as follows. 5 On 28 April 2016, the applicant, Mr Dheeraj Godla, was convicted of committing an act of indecency upon a 17-year-old female passenger whom he was transporting in his capacity as a taxi driver. As the offence was committed against a child, it was classified as a "Class 2 offence" under s 3(1)(a1) of the CPOR Act as in force at the time, and falls within the definition of a "Class 2 offence" as currently in force: s 3(1)(n), CPOR Act. As a "Class 2 offence" is a "registerable offence", Mr Godla was required to be placed on the Child Protection Register, as in fact occurred: ss 3, 19, CPOR. 6 As a result of being registered on the Child Protection Register, Mr Godla is prohibited from leaving Australia unless he obtains permission to travel from a competent authority: see ss 271A.1(1), 271A.1(3), Criminal Code Act 1995 (Cth) (the Code). In Mr Godla's case, the relevant competent authority from whom permission to travel must be obtained is the NSW Police Commissioner: see s 12, Australian Passports Act 2005 (Cth) (Passports Act). 7 On various occasions in 2018 and 2019, Mr Godla sought permission from the NSW Police Commissioner to travel to India and Sri Lanka. On 11 June 2018, although permission to travel had been denied, Mr Godla attempted to leave Australia for Kuala Lumpur. Mr Godla was apprehended at Sydney International Airport and his passport was seized and retained temporarily by an officer of the AFP with a view to preventing him from travelling without lawful authority. 8 Subsequently, the NSW Police Commissioner made a request under s 12(1A) of the Passports Act to the Minister that Mr Godla's passport be cancelled. In this regard, as the primary judge observed (at [30]): … Section 12 of the Australian Passports Act provides that the competent authority may make a passport refusal/cancellation request. Such a request may be made in relation to a person who is an Australian citizen and a reportable offender: s 12(1A). This single request carries, at least in this case, the dual purposes of causing passport cancellation and preventing reissue of a passport unless and until permission to travel is granted. Once such a passport refusal/cancellation request is made under s 12(1A): (1) under s 22AA, the Minister must cancel an Australian passport issued to a person the subject of the request, unless, pursuant to s 19, the refusal/cancellation request has been withdrawn or can no longer be regarded as current in accordance with the usual administrative practices of the Department of Foreign Affairs and Trade (DFAT); (2) under s 12(2), the Minister must not issue an Australian passport to the person the subject of the request. (Emphasis in bold and italics added.) 9 On 15 August 2018, the Department of Foreign Affairs and Trade wrote to Mr Godla advising him that the Minister had received the request under s 12(1A) of the Passports Act and had cancelled Mr Godla's passport accordingly. On 17 February 2020, the NSW Police Commissioner's agent provided reasons for making the cancellation request. 10 On 4 September 2019, Mr Godla applied to the Australian Passport Office for an Australian passport. On 16 September 2019, the Australian Passport Office advised Mr Godla that the application would not proceed because s 12(2) of the Passports Act prohibited the issue of a travel document to him. 11 On 30 December 2019, Mr Godla filed an originating application seeking judicial review under the ADJR Act of a number of administrative decisions made by both state and federal decision-makers (including the respondents). Mr Godla's application was dismissed by the primary judge on 19 March 2020 and reasons were given by his Honour on 16 April 2020. The primary judge held (at [4]) that much of Mr Godla's case was misconceived because it sought to challenge decisions under state law that could not be the subject of judicial review in the Federal Court of Australia under the ADJR Act. The only decisions under challenge which his Honour considered could possibly be the subject of judicial review in this Court were: (1) The NSW Police Commissioner's refusals of Mr Godla's requests for permission to travel; (2) the Minister's cancellation of his passport; and (3) the Minister's refusal to issue a new passport, (the three challenged decisions.) 12 However, his Honour found (at [5]) that Mr Godla's challenge to each of these decisions turned upon him being on the Child Protection Register, which was "the centrepiece of Mr Godla's case". Yet the question of whether he was validly on the Register was not a matter which the Federal Court has jurisdiction to review. As such, his Honour held (at [6]): Mr Godla does not accept that his conviction is valid, or even if it was, that he is validly on the Child Protection Register. His objections to not being given permission to travel, to his passport being cancelled, and to a fresh passport not being issued, turn on that stance, rather than addressing the substance of those decisions and the reasons given for them, or the statutory basis for them being made. Thus the way in which Mr Godla's case is presented on the permission to travel and passports aspects largely depends upon the Court being able to grant relief in respect of state legislation, and in respect of decisions made under state legislation, which it cannot do. That part of his case is and always has been doomed to fail for the simple reason that this Court has no jurisdiction to grant relief of that kind. This was explained to Mr Godla at the commencement of the hearing of his application and will not be addressed further in these reasons. 13 In the detailed and carefully reasoned judgment that followed, his Honour concluded with respect to the three challenged decisions: 59 The application for judicial review was out of time in respect of each decision or non-decision under federal statutes the subject of a challenge capable of being brought under the ADJR Act. Given that none of Mr Godla's grounds for review which are capable of giving rise to the exercise of the jurisdiction of the Court under the ADJR Act have come close to being established, nor alternatively a proper basis for the exercise of discretion to grant relief been made out, the appropriate course is to refuse an extension of time for all of the challenges to those decisions. 60 The remaining grounds fell short of engaging the jurisdiction of the Court. 61 The appropriate course adopted by the orders made on 19 March 2020 was therefore to dismiss the (further) amended originating application dated 17 February 2020. There was no reason why costs should not have followed the event. Accordingly, Mr Godla was ordered to pay the costs of all three respondents.

THE APPLICATION FOR AN EXTENSION OF TIME AND EVIDENCE 14 On 11 August 2020, Mr Godla filed an application for an extension of time within which to appeal the decision of the primary judge. That application was supported by his affidavits filed on 11 August 2020 and 16 November 2020 (Court Book filed 9 December 2020 (CB) at pp. 64-71 and 246-263 respectively). While not properly sworn, no objection was taken on this ground and they were received at the hearing subject to relevance (T, 30/03/21, 10.3-16). As Mr Godla seeks to explain the reasons for his delay in instituting the present proceeding in these affidavits, they are relevant to this extent and I will take them as read in support of his application for an extension of time. 15 The Court also received a draft notice of appeal dated 3 August 2020 on 11 August 2020 and submissions from Mr Godla dated 4 November 2020 entitled "Reply to written submissions of the NSW Commissioner of Police, first respondent" (CB at p. 178) (applicant's reply submissions). Even though these documents were not filed, they were served and included in the Court Book and did not, therefore, take the other parties by surprise. As such, I have taken them into account. However, I have not received in evidence the correspondence annexed to the applicant's reply submissions which is reproduced at pp. 197-200 and 204-209 of the Court Book, given that this is new evidence on substantive issues which was not before the primary judge: see the affidavit of Sophie Maltabarow, solicitor for the NSW Police Commissioner, affirmed on 4 November 2020 at [3] and annexure A. It follows that it is unnecessary for me to receive in evidence the affidavit of Sergeant Craig Zahra sworn on 10 December 2020 upon which the NSW Police Commissioner sought to rely only in the event that the documents to which I have referred were admitted over objection (T, 30/03/21, 12.32-39). 16 Finally, as I have already mentioned, Mr Godla filed an interlocutory application on 11 August 2020 and an amended interlocutory application on 14 August 2020 which sought a variety of orders of an interlocutory and final nature such as to join multiple third parties, for production of documents in relation to his passport cancellation, and for a writ of mandamus requiring him to be issued with an Australian passport. The application and amended application were supported by affidavits of Mr Godla also filed on 11 and 14 August 2020 respectively. However, these affidavits are irrelevant to the present application and at the case management hearing on 14 October 2020, I determined that the applicant's so-called interlocutory application should logically await the outcome of the application for an extension of time which may be (and in fact has been) rendered otiose. At that case management hearing, I also informed Mr Godla that the only proper respondents to any appeal were those persons who were parties to the original application for judicial review.

PRINCIPLES GOVERNING THE GRANT OF AN EXTENSION OF TIME 17 Rule 36.03 of the Federal Court Rules 2011 (Cth) requires a notice of appeal to be filed and served within 28 days after the date on which judgment below was pronounced or alternatively, on or before a date fixed by the court below. The primary judge made final orders on 19 March 2020, with reasons being published on 16 April 2020. There having been no other date fixed, the time limit for instituting an appeal ended on 16 April 2020. Accordingly, as Mr Godla's application was lodged on 11 August 2020, an extension of 145 days is required. 18 Ultimately, the question on the application for an extension of time is where the interests of justice lie. Considerations relevant to answering that question include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent, and the substantive merits of the proposed appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19] (Murphy J), citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (Wilcox J). 19 Importantly, in considering the merits of the proposed appeal, the draft grounds of appeal should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J), approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court).

SHOULD THE APPLICATION FOR AN EXTENSION OF TIME BE GRANTED? 20 As earlier explained, this proceeding was instituted almost four months after the appeal period had expired. In his first affidavit, Mr Godla contends that the reasons for his delay related to: searching for accommodation in March 2020; the COVID-19 pandemic being a "drain on time"; stress and depression; and his arrest and detention in custody from 3-29 May 2020. 21 The delay is substantial. The reasons that Mr Godla gives for the delay were not challenged in cross-examination. While I accept that there are doubts as to the sufficiency of the explanation as the NSW Police Commissioner submits, I have assumed in Mr Godla's favour that an adequate explanation has been given for the delay for the purposes of this application. Furthermore, the respondents accept that they would not suffer any prejudice if the extension were granted aside from being put to expense, and concern for the finality of litigation. The primary issue is, therefore, whether the appeal would have no reasonable prospects of success such that the grant of an extension of time would be, accordingly, futile, as the respondents contend. 22 For the reasons set out below, the respondents' contentions must be accepted. Any appeal would be bound to fail. 23 First, this Court does not have jurisdiction to grant Mr Godla the relief he seeks, which includes: granting him permission to travel overseas; issuing him with an Australian passport; granting him a Working with Children Check clearance; setting aside his conviction of 5 February 2019 (and awarding compensation, damages and/or costs in relation to the conviction); awarding damages for lost time, loss of employment and other losses attributed to the decisions subject to the proceedings for judicial review; ordering the removal of his name from the Child Protection Register; and remedies in relation to matters falling exclusively within the jurisdiction of the Family Court of Australia. 24 Secondly, the draft notice of appeal is prolix, spanning 48 pages and containing 49 proposed grounds of appeal which are vague, unintelligible and/or bare assertions (such as allegations simply that the decision was made in bad faith and against natural justice), and fail to identify error on the part of the primary judge. As to the last of these points, it is not sufficient for an applicant merely to express disagreement with the primary judge's conclusion. It is necessary to identify a potentially appealable error in the primary judge's decision. However, as the second and third respondents submit, the proposed grounds of appeal: … generally seek to reagitate the same grounds, or add new grounds, as if this were a further opportunity for primary judicial review, thus seeking, as Katzmann J put it in AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162 at [24], impermissibly to be seeking "to have another shot at the decision under review". 25 Thirdly, the specific dates in respect of which Mr Godla sought to travel which were the subject of the NSW Police Commissioner's decisions are long past. As a result, even if the applicant were successful on his appeal, the outcome would (at best) be remittal to the NSW Police Commissioner or his agent to consider various applications relating to travel plans, and travel reasons, which are now out of date. The passage of time has therefore deprived the issues of any real and practical significance and any judgment on the appeal could not affect rights that remain capable of being enjoyed in a real and genuine sense: see by analogy Beitseen v Johnson (1989) 29 IR 336 at 337-8 (the Court). 26 Fourthly, the NSW Police Commissioner's request under s 12(1A) of the Passports Act remains in effect and, therefore, there would be, in theory, some utility in an appeal on that issue alone. However, the fact that a fresh application to revoke the refusal/cancellation request may be made (as the NSW Police Commissioner conceded) is a matter weighing heavily against the grant of an extension of time. 27 Finally, the dismissal of his application for an extension of time does not deprive Mr Godla of the opportunity to make a fresh application to travel on dates in the future: see by analogy Vats v McGibbon [2015] FCA 549 at [8] (Davies J).

CONCLUSION 28 Considering the matter at a reasonably impressionistic level, the proposed appeal does not enjoy any reasonable prospects of success and it would not therefore be in the interests of justice to grant an extension of time within which to appeal. The application should be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.

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