Ugur v Australian Federal Police [2011] FCA 15 (19 January 2011)

Last Updated: 21 January 2011

FEDERAL COURT OF AUSTRALIA

Ugur v Australian Federal Police [2011] FCA 15

Citation:		Ugur v Australian Federal Police [2011] FCA 15
Appeal from:		Application for Extension of time: Ugur v Commissioner of Australian Federal Police [2010] FCA 303
Parties:		HACI UGUR v AUSTRALIAN FEDERAL POLICE
File number:		NSD 883 of 2010
Judge:		KATZMANN J
Date of judgment:		19 January 2011
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules Freedom of Information Act 1982 (Cth)
Cases cited:		Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 Jess v Scott (1986) 12 FCR 187 Parker v The Queen [2002] FCAFC 133 Tait v Harris [2003] FCA 416 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Date of hearing:	12 October 2010
Date of last submissions:	1 October 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	67
Solicitor for the Applicant:	The applicant appeared in person with the aid of an interpreter
Solicitor for the Respondent:	Ms B Griffin of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 883 of 2010

BETWEEN:	HACI UGUR Applicant
AND:	AUSTRALIAN FEDERAL POLICE Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	19 JANUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.
2. The applicant is to 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 883 of 2010

BETWEEN:	HACI UGUR Applicant
AND:	AUSTRALIAN FEDERAL POLICE Respondent

JUDGE:	KATZMANN J
DATE:	19 JANUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has lived in Australia since 1990 and is a permanent resident. It appears not to be in dispute that for five years, however, he was in immigration detention. He believes that the respondent has been monitoring him for some time and he made an application to it for access to, and a copy of, all the files it holds concerning documents relating to his personal affairs under the Freedom of Information Act 1982 (Cth) (“the FOI request”). The respondent supplied him with all the documents it considered relevant to his request but redacted those parts that it did not consider relevant. The applicant challenged the determination that he had been provided with all relevant documents but it was affirmed by an internal review. The applicant then applied to the Administrative Appeals Tribunal (“the AAT”) for review of the decision. After a preliminary conference between the parties one additional document redacted for relevance was supplied. On 4 June 2009 the AAT dismissed the application and affirmed the decision: Ugur v Australian Federal Police [2009] AATA 405. The applicant then applied to this Court for review of the AAT’s decision under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). On 20 May 2010 the primary judge dismissed the application. At all times the applicant was unrepresented.
2. Nearly two months later, on 16 July 2010, the applicant applied for an extension of time to file and serve a notice of appeal from the decision of the primary judge. For the reasons that follow I am of the opinion that the application should be dismissed.

The AAT proceeding

3. The applicant claimed that all documents relevant to his FOI request had not been produced by the respondent.
4. The respondent relied on two affidavits sworn by Jacqueline Gail Matan, leader of the respondent’s Freedom of Information Legal Team at the time. In her first affidavit, sworn on 19 December 2008, she described the additional searches the respondent undertook after the AAT proceeding began to locate documents answering the FOI request and said that these had not identified any further documents. Unfortunately, annexure C to the affidavit, which she said showed the search results, was not attached. In any case, the AAT was satisfied by Ms Matan’s second affidavit, sworn on 20 March 2009, in which she said the omission was “an administrative error”, that she had caused the earlier searches to be repeated and which therefore brought “the search information completely up-to-date”.
5. Relevantly, s 24A of the Freedom of Information Act provides that an agency may refuse a request for access to a document if “all reasonable steps have been taken to find the document” and it is satisfied that it does not exist. Section 22 relevantly provides, in substance, that an agency must provide an edited copy of a document in certain circumstances if a grant of full access to the document “would disclose information that would reasonably be regarded as irrelevant” to the request.
6. The AAT was satisfied that all reasonable steps had been taken to find the documents, the subject of the FOI request, and concluded that documents the applicant claimed had not been provided in answer to the request do not exist. It also held that the deleted parts of the documents supplied to the applicant were reasonably regarded as irrelevant to his request.
7. The AAT’s reasons were largely encapsulated in three paragraphs of its decision. It is convenient to set out those paragraphs in full:

[19] The information in Ms Matan’s Supplementary Affidavit satisfies me as to the breadth of that search. Documents were diligently extracted and provided to Mr Ugur and no further documents could be located: Re Cristovao [Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138]. On balance therefore, I am satisfied that “reasonable” steps have been taken to “find” all of the documents the subject of Mr Ugur’s request.

[20] Specifically, in relation to the two reports which Mr Ugur said are missing (February and June 2005), I note that Mr Ugur was unable to show that the NSW police officers in fact reported either matter to the Federal Police. Again, having regard to the breath of the search, I find that documents relating to those matters do not exist.
......
[23] I was provided with an unredacted version of all the documents provided to Mr Ugur. It is clear from the face of the partial exemptions claimed over those documents, including the note by Federal Agent Succar, that they related to other non-related policing duties. I am satisfied that the deleted information from the material provided to Mr Ugur is “reasonably regarded” as irrelevant to his request.

The application for review

8. The applicant's application for review of the AAT’s decision was filed in this Court on 6 July 2009 and listed nine grounds. The grounds contained in the application were:

(1) A breach of the rules of natural justice.

The applicant’s grievances under this ground were:

(a) The AAT did not inform him about s 24A of the Freedom of Information Act and, in consequence, he was not informed of, and did not have an opportunity to comment on, the case against his application.

(b) The AAT exhibited bias in that it:

(i) twice refused his requests for a directions hearing after the respondent failed to reply to his affidavit;

(ii) refused to make an order enabling him to seek legal advice, after the respondent had refused his requests for a consent order to that effect;

(iii) refused his request for an adjournment;

(iv) helped the respondent “cover up [its] misconduct”;

(v) asked him to discontinue the proceedings, giving as a reason the respondent’s further searches of its databases; and

(vi) structured the hearing “to help...Ms Matan avoid examination”.

(2) The AAT failed to follow procedures required by law, which he submitted involved:

(a) asking the respondent to take all reasonable steps to locate the materials he sought;

(b) asking the respondent to reply to his affidavit of 8 April 2009;

(c) holding a directions hearing to organize witnesses to be examined and the time at which they were to be examined;

(d) asking the respondent why it misled the tribunal in paragraphs 4 and 5 of Ms Matan’s first affidavit.

(3) The AAT’s decision was induced by fraud and there was no evidence or other material to justify the making of the decision.

(4) The decision was not authorised by the enactment under which it was made.

(5) The making of the decision was an improper exercise of power.

(6) The decision maker must take relevant considerations into account when making the decision and must not take account of irrelevant considerations.

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

(8) In terms this ground was “[c]onduct that is being engaged in (or is proposed to be engaged in) by a decision maker for the purpose of making a decision”. This ground was, and remains, unclear.

(9) The AAT’s decision was unreasonable in the Wednesbury sense (that is to say, it was so unreasonable that no reasonable decision-maker could have reached it).

9. Grounds 4 – 8 were not particularized and did no more than repeat several of the grounds on which an application for review may be brought under the ADJR Act.

The decision of the primary judge

10. With respect to the first ground alleging a denial of procedural fairness involving a breach of both the hearing and bias rules, the primary judge noted from a review of the transcript of the proceeding that, although neither the respondent nor the AAT had directly referred to s 24A of the Freedom of Information Act. It was clear that the AAT had brought to the applicant’s attention the critical issue upon which its decision would turn, namely, the respondent’s contention that it had searched for the documents the applicant requested and provided them to him. In those circumstances, his Honour held, his claim that he was not informed of the case against him, specifically, that he was not expressly informed of the terms 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.
11. With respect to the other aspect of the claim – the allegation of bias – his Honour noted that the applicant’s assertions “seemed to stem from his dissatisfaction at the AAT’s unwillingness to adopt procedures for the conduct of the hearing at his request”. On the evidence the applicant relied on, his Honour found that “there was nothing extraordinary in the Tribunal’s approach” and the claim that there was some agreement between the member and the respondent to “cover up” the respondent’s misconduct was not made out.
12. His Honour then referred (at [25] of his reasons) to the applicant’s claim that he was unaware that Ms Matan would give evidence at the hearing. He noted that the concern appeared to relate to the fact that Ms Matan gave oral evidence by telephone and he was not prepared to cross-examine her, saying he needed a solicitor to do so. His Honour said that he appeared to accept that the AAT had arranged an appointment for him with Legal Aid which he cancelled, informing the AAT that he did so 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 AAT 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". His Honour then referred to the applicant’s cross-examination of Ms Matan in which he explored the reason for her failure to attach annexure C. He concluded that it was “tolerably clear that the applicant had an opportunity to obtain legal advice, which 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”.
13. His Honour rejected the applicant’s claim that the AAT knew that the respondent “intentionally did not make an accurate search” as being without merit. He noted that the reasons for decision show that the AAT considered the evidence and concluded that the respondent had taken all reasonable steps to find the documents.
14. He also rejected the applicant’s claim that he had been treated unfairly. His Honour observed that there was nothing untoward about the way the AAT conducted the hearing and the respondent had no obligation to agree to the applicant’s proposed consent order allowing him to seek legal advice, a course his Honour said would have been both inappropriate and unnecessary.
15. He found there was no evidence to support the allegations that the respondent misled the AAT and, with respect to the other submissions made in connection with ground 2, his Honour said that “this element of the applicant’s claim is grounded on the applicant’s dissatisfaction with the manner in which the Tribunal concluded the hearing and the conclusions it reached. In particular, the applicant reiterates his belief that the respondent did not “adequately search its records systems””. His Honour said that his conclusions on this aspect of the claim were expressed at [27] of his reasons. It was there that he stated that there was nothing untoward about the way the AAT conducted the hearing.
16. With respect to the remaining grounds, his Honour found there was no basis for the contention that the AAT’s decision was induced by fraud (or made without evidence to support it) and that grounds 4 to 8 were without foundation, based on his Honour’s own review of the application, submissions and transcript of the hearing before the AAT.
17. He also rejected the submission based on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, referring to the AAT’s “detailed and cogent reasons”.

The power to extend time

18. Under O 52 r 15 of the Federal Court Rules the applicant’s notice of appeal had to be filed and served within 21 days after the date judgment was pronounced. The time for appealing from Moore J’s judgment, therefore, expired on 10 June 2010. Order 52 r 15(2) gives the Court a discretion to extend the time where there are “special reasons” for permitting the appeal to proceed though filed outside the prescribed 21 days.

The application for extension of time

19. The application was supported by an affidavit sworn by the applicant on 14 July 2010.
20. Order 52 r 15(3)(c) requires that such an application be accompanied by an affidavit setting out the nature of the matter, the factual and legal issues in dispute and the reasons why leave should be given. The affidavit does not comply with the rule.
21. In the affidavit the applicant stated that, at the time he received a copy of the judgment on 20 May 2010, he “had knowledge” that he had 28 days from the date he received the decision in which to appeal but he went to the registry on 15 June 2010 and was informed that he had 21 days to appeal. At that point he was given a Form 54A (Application for extension of time to file and serve a notice of appeal), asked to prepare an affidavit and return it with his application.
22. In effect, the reason he gives for his delay is that until 15 June 2010 he was mistaken about the length of time in which he had to file his notice of appeal. It is doubtful whether this would qualify as a special reason. But a special reason need not be an extraordinary or exceptional one. The real question is whether the applicant has made out a case sufficient to justify a departure from the ordinary rule.
23. In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court held:

What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.
...
It should not be overlooked that r 15(2) enables leave to be given “at any time”; the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. “Special reasons” must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

24. As the Full Court observed in above passage, even if special reasons can be shown, the Court retains a residual discretion to refuse an extension. Relevant factors affecting the exercise of the discretion include prejudice to the other party (although absence of prejudice will not of itself justify the grant of leave), the existence of an acceptable explanation for the delay, and the merits of the proposed appeal, for the Court will not grant an extension if it would be futile. Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. It must be “fair and equitable in the circumstances” to extend time. See Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-9 per Wilcox J (approved by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6]- [7].
25. The discretion should also be exercised having regard to provisions of s 37M of the Federal Court of Australia Act 1976 (Cth), which requires that the Federal Court Rules be interpreted in such a way as to further the overarching purpose of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
26. Here, the applicant has explained only part of the delay; there is no explanation for the month-long delay from the time the applicant became aware of the time limit and the date the application was filed. But the delay is not lengthy and the respondent accepts that it is not prejudiced. Still, it opposes the application, principally because, it submits, it has no prospects of success.

The grounds of appeal

27. The application for extension of time annexed a draft notice of appeal which was, in effect, both a draft notice and a submission.
28. The respondent described the grounds as confusing, prolix and embarrassing. That is undoubtedly true but, where an applicant is unrepresented, that is no sufficient basis for dismissing an application. In summary the grounds appear to be as follows:

(1) The primary judge and the AAT failed to determine whether Ms Matan's affidavit dated 19 December 2008, without annexure C to the affidavit (the results of the search of the respondent’s database that she undertook), and Ms Matan's affidavit of 20 March 2009, were admissible evidence, and the nature of the administrative error said to explain the omission of annexure C.

(2) Ms Matan was permitted to give evidence by telephone without consulting the applicant and in breach of the AAT’s General Practice Directions concerning the giving of evidence by telephone and, as a result, he “was ambushed by respondent” [sic]. In his second set of written submissions he also complained that Ms Matan did not have all relevant documents including her own affidavits to hand when she gave evidence.

(3) The primary judge and the AAT erred “in the making of a finding, or the drawing of interference, in absence of evidence or supporting probative material (evidence)”. This appears to refer to the omission of annexure C and an allegation that there was no evidence to support Ms Matan’s first affidavit.

(4) The AAT’s finding that the failure to attach annexure C to the affidavit was a simple error was “not correct or outrageous (scandalous)” [sic]; Ms Matan had therefore sworn a false affidavit and this amounts to professional misconduct.

(5) The affidavit of Ms Matan did not demonstrate the adequacy of the respondent’s searches. The AAT erred in concluding otherwise and Ms Kannelopoulos (who appeared for the respondent at the AAT hearing) did not give truthful evidence.

(6) The AAT erred in granting adjournments without consulting the applicant “to favour the respondent” and in refusing his requests to have the matter listed for directions.

(7) The AAT organised an appointment with Legal Aid “at the last minute to use against [him] intentionally by their reasons” and without giving him notice. and the primary judge erred in finding that he was given the opportunity to obtain legal advice, which he rejected.

(8) Ms Griffin (a solicitor employed by the Australian Government Solicitor, the respondent’s solicitor in the proceeding before the primary judge, who affirmed an affidavit on behalf of the respondent in the proceeding) avoided cross-examination.

(9) The AAT 's decision was induced by fraud because:

(a) The applicant was not notified by the respondent and the AAT that Ms Matan would give evidence at the AAT hearing and, as a result, the AAT failed to give the applicant a fair opportunity to effectively cross examine Ms Matan;

(b) Neither the primary judge nor the AAT followed the normal procedure;

(c) The applicant was not told about allegations made against him “and why I was abused by AFP, certain areas of government and court against me and they prevented me from providing evidence to prove my innocence” [sic];

(d) He was monitored and abused without charge;

(e) The respondent failed to give him a simple letter to allow him to receive legal advice and the Tribunal failed to make an order to enable him to obtain legal advice.

(10) The primary judge adjourned the case for a long time during which he allowed the respondent to abuse the applicant.

(11) He was denied procedural fairness because:

(a) The primary judge waited until May 2010 to deliver his judgment “for political reason”;

(b) He did not get a fair hearing;

(c) He did not receive the respondent’s second set of submissions.

(12) The AAT prejudged his case.

29. He also made complaints that:

(a) The second Matan affidavit was misleading in certain respects;

(b) There was some kind of improper association between the respondent’s solicitor and the interpreter (because they left the court in each other’s company on two occasions);

(c) The Tribunal and the primary judge gave permission to the respondent to fabricate the record and abuse him;

(d) “Interpreter service was not always helpful to me in presenting my case to the Tribunal”.

30. In his written submissions the applicant argued that his application concerned an “order with important consequences for the public”, raised “issues of public importance relating to the Court misleading applicants”, that it was “in the public interest that the performance criteria of the AFP should be a measure of commitment to principles of openness and accountability” [sic] and there was “a public interest in favour of disclosure”. For these reasons he submitted that the issues were “novel” and of “general importance” and should be the subject of consideration by a Full Court who “will be able to give me an independent decision regarding my vulnerable situation”. I will deal with this last question first, before considering the merits of the proposed appeal.

Referral to a Full Court

31. The applicant relied on a decision of this Court in Tait v Harris [2003] FCA 416 (“Tait”) in which Cooper J held that Mr Tait had a right to elect whether to have his case heard by a single judge or a Full Court. But Tait was not an application for extension of time to appeal and it was decided before s 25 of the Federal Court of Australia Act was amended. At the time of the decision in Tait subs (2)(b) provided that applications for an extension of time within which to institute an appeal to the Court “may be heard and determined by a single Judge or by the Full Court”. Section 24(2)(b) was amended by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), and came into force on 1 January 2010. It now provides that an application for an extension of time must be heard and determined by a single judge unless a judge directs that it be heard and determined by the Full Court or it is made in a proceeding already assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine it. As this application has not been made in a proceeding already assigned to a Full Court it can only be heard and determined by one if a judge so directs. No judge has to date and I do not propose to do so.
32. Although some of the matters the applicant raises are certainly novel, I do not accept the applicant’s submission that the case raises issues of general importance. Neither do I believe that it requires the consideration of a Full Court. It would not further the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act to accede to the request. It would not be an efficient use of the judicial resources of the Court, the timely disposition of the application or the resolution of the dispute at a cost that is proportionate to the importance and complexity of the matters in issue. See Federal Court of Australia Act, s 37M(2).

The merits of the proposed appeal

33. To succeed in his appeal the applicant would need to show error on the part of the primary judge. Several of his grounds do not address the judgment, let alone point to error in the reasoning. Nonetheless I will deal with each of them.

The primary judge and the AAT failed to determine whether Ms Matan's affidavit dated 19 December 2008, without annexure C to the affidavit, and Ms Matan's affidavit of 20 March 2009, were admissible evidence, and the nature of the administrative error said to explain the omission of annexure C.

34. This ground is without merit. The affidavits were admitted into evidence at the same time. The second supplemented the first, detailing searches that were undertaken since the first affidavit had been sworn and explaining why annexure C was missing from it. The evidence was plainly admissible. In any case, the AAT is not bound by the rules of evidence. The AAT accepted Ms Matan’s explanation, although it did not use the same expression. As the respondent had nothing to gain by failing to annex a document the deponent purported to annex, no other conclusion was reasonably open.

Ms Matan was permitted to give evidence by telephone without consulting the applicant and in breach of the AAT ’s General Practice Direction concerning the giving of evidence by telephone and, as a result, he was “ambushed” by the respondent.

35. It is common ground that the applicant had no prior notice that Ms Matan would not attend in person but would give evidence by telephone. That is an unfortunate circumstance but the decision the AAT made to permit Ms Matan to give evidence does not give rise to appealable error.
36. The applicant’s grievance concerns the following part of the General Practice Direction:

Telephone or Video Proceedings
At the discretion of the presiding member, part of any hearing may be conducted either by telephone or video link. A party seeking to have evidence taken in this manner should seek the other party’s written consent before applying to the presiding member for an appropriate direction. The presiding member may wish to conduct a directions hearing before exercising this discretion.

Where evidence is to be given either by telephone or video link, the party whose witness it is will make all necessary arrangements and provide the relevant registry with details of the proceedings, the witness, location, telephone numbers and the date, time and estimated duration.

37. The General Practice Direction imposes no obligation on the AAT with respect to the giving of evidence by telephone. It entreats the party who seeks to have the evidence taken in this way to seek the other party’s written consent. There is no evidence one way or the other about this. A submission is not evidence.
38. In any event, however, the General Practice Direction has no application to the present case. The Direction states that (subject to exceptions not applicable here) it:

sets out the procedure to be adopted for all applications lodged in the Tribunal throughout Australia where the applicant is represented ...
[Emphasis added.]

39. As the applicant was not represented, there can have been no breach of the General Practice Direction.
40. Besides, the applicant’s real complaint does not seem to concern the mode by which the evidence was given. Rather, his grievance was that the deponent was called to give evidence when he was unprepared for it. He described this in his grounds of appeal as “an ambush”. Yet, the arrangement for Ms Matan to give evidence was apparently made as a result of a request the applicant, himself, made that she be made available for cross-examination. That request appeared in an affidavit affirmed by the applicant on 8 April 2009, the relevant portion of which he attached to his proposed grounds of appeal. Once the request was made it was incumbent on the respondent to make arrangements for Ms Matan to give evidence. It had no duty to inform the applicant that it would accede to his request.

The primary judge and the AAT erred “in the making of a finding, or the drawing of interference, in absence of evidence or supporting probative material (evidence)”.

41. There is no basis for concluding that the AAT made a finding or drew an inference adverse to the applicant in the absence of evidence. It is plain that the decision was based on the evidence of Ms Matan. There can, in the circumstances, be no criticism of the primary judge in this regard.

The AAT’s finding that the failure to attach annexure C to the affidavit was a simple error was “not correct or outrageous (scandalous)”, Ms Matan had therefore sworn a false affidavit and this amounts to professional misconduct.

42. This is no more than an attempt to revisit a factual finding of the AAT. It is not open to this Court to interfere with that finding. In any case, there is nothing outrageous or scandalous about it or about the solicitor’s conduct. It is true that swearing a false affidavit may amount to professional misconduct but, as I understand the AAT’s finding, the effect of the witness’s evidence was that it was through inadvertence that the document was not attached. The Senior Member held (at [12]) that the omission was “not in any way sinister”. Rather, she found that the deponent made an error in failing to annex it. That finding is incapable of being reviewed on appeal. It was not the subject of any determination by the primary judge in any event.

The affidavit of Ms Matan did not demonstrate the adequacy of the respondent’s searches, the AAT erred in concluding otherwise and Ms Kanellopoulos did not give truthful evidence.

43. Once again, this is a complaint about findings of fact, which was not the subject of a ground of review before the primary judge and could not be agitated on an appeal. Besides, Ms Griffin, who appeared for the respondent, informed the Court that Ms Kannelopoulos, the solicitor for the respondent at the AAT, did not in fact give evidence.

The AAT erred in granting adjournments without consulting the applicant “to favour the respondent” and in refusing his requests to have the matter listed for directions.

44. There is no evidence that the AAT granted an adjournment without consulting the applicant. Whether and how often a matter should be listed for directions is entirely within the discretion of the AAT and there is nothing to indicate that the discretion miscarried.

The AAT organised an appointment with Legal Aid “at the last minute to use against [him] intentionally by their reasons” and without giving him notice.

45. This ground is also unsupported by evidence. Indeed, the statement that the applicant was not given notice is actually disproved by a document he attached to his application. That document is a letter from Mr Tim Ngui of the Members' Support Team at the AAT dated 22 May 2009 in which Mr Ngui notes that the applicant requested a directions hearing that morning because he said he needed legal advice and wanted to obtain the respondent’s consent. Mr Ngui said he referred the applicant’s request to the Senior Member who did not grant it but noted that an appointment had been made for him with a duty solicitor at the Legal Aid Commission and provided the details of the appointment.
46. There is no basis for concluding that the AAT member organised the appointment for the ulterior purpose attributed to her. The appointment appears to have been organised promptly. The timing might be explained by the lateness of the applicant’s request or the availability of the duty solicitor.
47. There is no evidence to support the repeated assertions the applicant made that the respondent prevented him from obtaining legal aid. The applicant relied on the High Court’s decision in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 but the submission was misconceived. The applicant is not on trial.

Ms Griffin avoided cross-examination

48. This ground relates to the failure of the respondent to offer evidence from Ms Griffin when she had sworn or affirmed an affidavit. He said he believed she avoided cross-examination. According to the applicant’s draft notice of appeal he had written to both the Court and the respondent’s solicitor objecting to the use of Ms Griffin’s affidavit. He now complains, in effect, that the respondent acceded to his objection. Again, according to the draft notice of appeal, he was advised by the respondent’s solicitor that Ms Griffin was on leave. The respondent’s decision not to rely on her affidavit has the result that she avoided cross-examination but it has no legal repercussions. It was for the respondent to decide how to present its case and the evidence upon which it would rely.

The AAT’s decision was induced by fraud

49. There is no evidence of fraud. No error is apparent in the primary judge’s observation that the allegations the applicant made were “serious but do not rely on a scintilla of evidence”. Certainly, the applicant pointed to no such evidence. I repeat what I said earlier. Submissions are not evidence.
50. In support of this ground the applicant repeated his complaint that he was not notified that Ms Matan would give evidence and asserted that he was not given a fair opportunity to cross-examine her. Even if proved, that could not amount to fraud.
51. In his notice of appeal the applicant referred to a passage in a judgment of Wilcox J in Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320 (“Hayes”) where, he stated, his Honour said “that the right to cross-examine means the right effectively to cross-examine and that if directions given by a court or a tribunal have the effect of fettering cross-examination such that the evidence of a witness cannot be tested, procedural fairness has been denied”. His Honour’s remarks need to be taken in context. His Honour said in Hayes at 326-7:

Counsel argue that the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply. Moreover, although counsel accept that there exists some discretion to control cross-examination so as to ensure relevance and to guard against repetition and prolixity, it is said that the right to cross-examine means the right effectively to cross-examine. If directions given by a court or a tribunal have the effect of so fettering cross-examination that a witness’ evidence cannot properly be tested, procedural fairness has been denied. Reference is made to R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 33–4; 29 ALR 289 by way of example.

In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of his or her symptoms is likely to be critical, counsel contend that the right to cross-examine effectively must include the right to test the credit of the claimant....

52. At 327 his Honour said he accepted counsel’s submission.
53. There is no substance to the complaint. The primary judge dealt with it at [25] of his reasons and there is no error in his conclusions. No directions of the AAT had the effect of so fettering the cross-examination of Ms Matan that her evidence could not be properly tested.
54. He also repeated his complaint that the AAT did not follow normal procedure. I have already dealt with this.
55. The applicant complained, too, that the AAT failed to make an order enabling him to obtain legal assistance and of the respondent’s failure to give him a letter to allow him to receive legal advice. This complaint is based on two misconceptions: first, that he needed to obtain the respondent’s consent, and second, that the AAT had the power or the duty to make such a direction.
56. Nothing else to which the applicant pointed could be described as fraud.

The primary judge adjourned the case for a long time during which he allowed the respondent to abuse the applicant

57. In his first set of written submissions the applicant wrote:

During the proceeding before His Honour Justice Moore, the Justice made a long adjournment, and during this time allowed the respondent to monitor me and abuse me. I was unable to express my side of the story. The judge made a decision without hearing both sides fairly. The respondent was given the opportunity to produce a further submission to the court. I was not provided with the opportunity to see or hear the submission. I was treated as a slave. I would like the opportunity to appeal this dismissal as I was not treated fairly and I was not given an opportunity to respond.

58. It is not clear what “adjournment” the applicant has in mind. The proceeding before the primary judge was heard on one day – 1 April 2010 – and his Honour reserved judgment, which he delivered on 20 May 2010. This is scarcely a long time. There were two directions hearings before the case was fixed for hearing. That is unexceptional. There was, as one might expect, a lag of time between the date the directions were made and the hearing. There is no evidence to support the submission that his Honour made his decision without hearing both sides fairly. The proposition that the primary judge “allowed the respondent to [monitor and] abuse the applicant” is baseless.

He was denied procedural fairness

59. Each of the matters the applicant raised about a denial of procedural fairness is also unsubstantiated. I have already referred to the time during which the primary judge reserved. The statement that he did so for political reasons is unwarranted and scandalous, was not the subject of any evidence and must be rejected.
60. The second basis for the allegation is that the applicant did not get a fair hearing but there is nothing to support that submission either. He was clearly given an opportunity to present his case. He invokes the right of an accused to a fair trial, the presumption of innocence and proof beyond a reasonable doubt. But he is not an accused. These principles have no application outside a criminal proceeding.
61. The applicant also complained that the respondent did not answer the questions he put to it, questions such as details of how he had been monitored, why he had been treated “as a slave” without having had a fair trial, why he was prevented from accessing his property and why his case was dealt with in “the Star Chamber” without his knowledge and consent. He still seeks answers to those questions. None of the matters was relevant to the inquiry before the primary judge or before me and the foundation for them is obscure.
62. As for the third basis – that he did not receive the respondent’s second submission - the explanation for that is a simple one. The primary judge apparently afforded the respondent an opportunity to file a further submission but the respondent did not avail itself of that opportunity.
63. The grounds of appeal indicate that the complaint about a denial of procedural fairness relates to the hearing before the primary judge but at the hearing of the application before me the applicant expanded his claim, returning to the complaint he made to the primary judge that he was not informed of the terms of s 24A of the Freedom of Information Act. Whilst there is nothing to indicate that he was informed of the terms of the section, this claim is without merit. The respondent’s notice of facts and contentions dated 20 May 2009, which the applicant said he received before the hearing, identified as an issue the question “whether adequate and reasonable searches have been carried out by the respondent to locate the documents subject to the request”. Paragraphs 13-16 of that notice contain the respondent’s contentions in that regard. The expression “all reasonable steps” appears four times in those paragraphs. For this reason there is no conceivable error in the primary judge’s decision that the claim the applicant made that he was not told of the case against him (because he was not informed of the terms of s 24A must fail. Nothing turns on the failure to refer to the section. The applicant knew that the question of whether all reasonable steps were taken was an issue in the proceeding and he had an opportunity to address the AAT on it.

The AAT prejudged his case and the primary judge “fundamentally breached concept of procedural fairness”

64. The applicant argued that both the AAT and the primary judge were actually biased against him. An allegation of actual bias is a serious allegation. It is well accepted that it must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69], [127]; [2001] HCA 17. Here it is neither distinctly made nor clearly proved. The primary judge was bound to reject the allegation made against the AAT. Equally, the submission that the primary judge “fundamentally breached concept of procedural fairness” is entirely without merit.

The additional complaints

65. With the exception of the third matter, none of these complaints raises any error on the part of the primary judge. There was no evidence to support any of the allegations of impropriety.

Conclusion

66. There is no discernible error in the primary judge’s decision and no evidence of any denial of procedural fairness on his part. Even assuming the applicant’s ignorance of the time limit may afford a special reason, he has not demonstrated that the Court should exercise its discretion in his favour.
67. Accordingly, the application will be dismissed with costs.
    

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated: 19January 2011