Ugur v Commissioner of Australian Federal Police

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.

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. I certify that the preceding thirty-two (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.