FEDERAL COURT OF AUSTRALIA Mentink v Minister for Home Affairs [2013] FCA 68 Citation: Mentink v Minister for Home Affairs [2013] FCA 68 Parties: WILFRED JAN REINIER MENTINK v MINISTER FOR HOME AFFAIRS File number: QUD 559 of 2012 Judge: COLLIER J Date of judgment: 12 February 2013 Catchwords: ADMINISTRATIVE LAW – application for extension of time – substantive application for judicial review under Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(e) – relevant principles – merits of substantive application – Minister's decision pursuant to Law Enforcement Integrity Commissioner Act 2006 (Cth) s 156(2)(c) – entitlement to reasons – Administrative Decisions (Judicial Review) Act 1977 (Cth) Sch 2 para (eaa) – extension of time not warranted Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Sch 2 para (eaa), ss 5, 5(1)(e), 11, 11(3), 13 Freedom of Information Act 1982 (Cth) Law Enforcement Integrity Commissioner Act 2006 (Cth) ss 3(1), 5(1), 7, 8, 156, 156(2)(b), 156(2)(c) Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited Date of hearing: 8 February 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr S McLeod Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 559 of 2012 BETWEEN: WILFRED JAN REINIER MENTINK Applicant AND: MINISTER FOR HOME AFFAIRS Respondent JUDGE: COLLIER J DATE OF ORDER: 12 FEBRUARY 2013 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application filed 15 October 2012 be dismissed. 2. The applicant pay the respondent's costs, to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 559 of 2012 BETWEEN: WILFRED JAN REINIER MENTINK Applicant AND: MINISTER FOR HOME AFFAIRS Respondent JUDGE: COLLIER J DATE: 12 FEBRUARY 2013 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This proceeding concerns an application for an extension of time in which to file an application for judicial review pursuant to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). The relevant decision of which Mr Mentink seeks review is a decision of the Minister for Home Affairs dated 6 July 2012. It is not in dispute that Mr Mentink sought to lodge his application for review outside the time period prescribed by s 11(3) of the ADJR Act. I note that Mr Mentink is a self-represented litigant, while the Minister has legal representation. 2 As was explained by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, although the ADJR Act does not prescribe any criteria by reference to which the Court's decision to extend time for an application for review under s 5 is to be exercised, the Court generally will not grant an application for extension of time unless positively satisfied that it is proper to do so. In summary, in considering whether to grant an extension of time, the Court will have regard to factors including the reason for the delay in lodging the application for review, prejudice the respondent could suffer were an extension of time granted, and the merits of the substantive application. 3 As Mr McLeod for the Minister submitted at the hearing last Friday, the Minister accepts that Mr Mentink has offered a satisfactory explanation for his delay in lodging the substantive application for review. Further, the Minister does not claim that he would suffer any prejudice should the Court be minded to grant an extension of time in which to lodge the substantive application. The dispute between the parties arises in relation to whether Mr Mentink's substantive application has merit, or alternatively lacks merit such that it has poor prospects of success and a hearing would, accordingly, be futile. 4 In considering this issue, it is first useful to outline the background to this proceeding, which is set out in detail in Mr Mentink's affidavit filed 14 January 2013. Background 5 Mr Mentink is currently a resident of Indonesia, although he deposes that he was at one point a teacher in Nutgrove, Queensland. On 27 December 2003 he was deported from Dili in East Timor to Darwin. His Australian registered yacht "Larus II" remained in Dili Harbour. Mr Mentink claims that the yacht was stolen in July 2004 by a third party who fraudulently caused the Australian registration of the yacht to be closed by the Registrar of Australian Ships on 11 August 2004. On 12 October 2004, Mr Mentink reported the theft of the yacht to the Australian Federal Police ("the AFP"). Mr Mentink deposes that he has traced his yacht to Kupang in Indonesia, however the Australian registration of the yacht remains "closed" and he has been unable to reclaim the vessel. 6 Mr Mentink took serious exception to the manner in which the Australian Federal Police dealt with his complaint of the theft of his yacht. Specifically, it appears that Mr Mentink had concerns that: the AFP had, separately, made disclosures to the Indonesian police in relation to Mr Mentink's past convictions between 2003 and 2009; and the AFP had been complicit in the theft of his yacht from Dili. 7 It appears that the AFP informed Mr Mentink that they had investigated his complaints, but did not have the jurisdiction to investigate the theft of Mr Mentink's vessel from Dili. It further appears that the AFP dismissed Mr Mentink's complaint in 2004. 8 In 2004 Mr Mentink made a formal complaint to the Commonwealth Ombudsman regarding the conduct of the AFP, alleging (inter alia) that the AFP had improperly dismissed the complaint. Mr Mentink's complaint to the Commonwealth Ombudsman was dismissed. 9 In 2008 Mr Mentink made a formal complaint to the Australian Commission for Law Enforcement Integrity ("ACLEI"). Both ACLEI and the office of the Integrity Commissioner are constituted by the Law Enforcement Integrity Commissioner Act 2006 (Cth) ("LEIC Act"), the objects of which are (s 3(1)): (a) to facilitate (i) the detection of corrupt conduct in law enforcement agencies; and (ii) the investigation of corruption issues that relate to law enforcement agencies; and (b) to enable criminal offences to be prosecuted, and civil penalty proceedings to be brought, following those investigations; and (c) to prevent corrupt conduct in law enforcement agencies; and (d) to maintain and improve the integrity of staff members of law enforcement agencies. 10 Mr Mentink deposes that in December 2011 ACLEI informed him that it had decided to cease investigation of his complaint. 11 It appears that in December 2011 Mr Mentink sought and obtained access to relevant documents pursuant to the Freedom of Information Act 1982 (Cth) ("FOI Act"). 12 It further appears that on or about 18 March 2012 Mr Mentink contacted Senator Brett Mason raising concerns with the ACLEI investigation. The relevant correspondence from Mr Mentink to Senator Mason is not before the Court. However Mr Mentink has exhibited to his affidavit correspondence between Senator Mason and the Minister referring to Mr Mentink's letter, namely correspondence from Senator Mason to the Minister dated 27 March 2012, and an undated letter in reply from the Minister to Senator Mason. (The inference may be drawn from other material before the Court that the letter from the Minister to Senator Mason was written on 2 May 2012.) 13 Materially, Senator Mason's letter of 27 March 2012 provided as follows: My office has received correspondence from Mr Wilf Mentink regarding an issue that falls under your portfolio. In particular, that the AFP may have acted inappropriately in relation to an investigation involving Mr Mentink. Mr Mentink has supplied our office with an email contact only… I trust that you are able to assist Mr Mentink with this issue. To enable us to liaise further with Mr Mentink, it would be helpful if a timely reply was sent to my office. A copy of Mr Mentink's correspondence is attached. Thank you in advance for your prompt response. 14 In reply to Senator Mason the Minister wrote on 2 May 2012 as follows: Thank you for your letter dated 27 March 2012, which forwarded the correspondence of Mr Wilf Mentink regarding his complaint of corrupt conduct and inadequate investigative action by law enforcement officers. Mr Mentink takes issue with a number of alleged actions by three different agencies – the Australian Federal Police (AFP), the Commonwealth Ombudsman, and the Australian Commission for Law Enforcement Integrity (ACLEI). The Australian Federal Police In relation to the AFP, Mr Mentink alleges that AFP officers dealt corruptly with him between 2003 and 2009, specifically by providing information of his past convictions to Indonesian police and being complicit in the theft of his yacht from Dili, East Timor. The AFP investigated the claims made by Mr Mentink and have advised him that all disclosures made to the Indonesian police were lawful and appropriate for the purposes of preventing and investigating Commonwealth offences. The AFP also advised that they do not have the jurisdiction to investigate the theft of Mr Mentink's vessel from Dili. The Commonwealth Ombudsman Mr Mentink made a formal complaint to the Commonwealth Ombudsman regarding his treatment by the AFP in 2004. He alleges that his complaint was improperly dismissed and that, in dismissing it, the Ombudsman only dealt with one aspect of his complaint and neglected other points raised by Mr Mentink. The Ombudsman advised that it considered issues raised by Mr Mentink and did not identify any evidence of corrupt conduct by any member of the AFP. Australian Commission for Law Enforcement Integrity Mr Mentink approached ACLEI in November 2008 with his complaint alleging corrupt conduct by members of the AFP. After initially referring the complaint back to AFP's Professional Standards Unit for investigation in 2009, the Integrity Commissioner reconsidered the way the issue should be handled as it became apparent that some of Mr Mentink's issues related to officers then working within the Professional Standards Unit. ACLEI took on full responsibility for the investigation in June 2010 under s26(1)(a) of the Law Enforcement Integrity Commissioner Act 2006. Subsequently, in 2011 ACLEI decided to take no further action on Mr Mentink's complaint. I have been informed that in the course of its investigation, ACLEI reviewed materials provided by both Mr Mentink and the AFP, and also made further inquiries of its own. In addition, the full investigation was kept under review. The decision to cease investigation and take no further action was based on a number of factors: the sale and transfer documents provided by the relevant authorities for Mr Mentink's yacht were in good order, and there was no reason for the AFP to question the information provided from these authorities Mr Mentink's concerns had already been fully considered and investigated by both the AFP and the Commonwealth Ombudsman, who both found no evidence of inappropriate conduct by members of the AFP ACLEI's own investigations and inquiries did not reveal any evidence of corrupt conduct by any member of the AFP The Commissioner lacked jurisdiction to launch an investigation into the actions of the East Timorese Government or its officials. I trust that this information will be of use to you. 15 On 12 May 2012 Mr Mentink wrote directly to the Minister making a complaint as to the manner in which ACLEI had handled his complaints to that agency and in particular alleging corruption in ACLEI. It appears that Mr Mentink sought a decision of the Minister pursuant to s 156(2)(b) of the LEIC Act. Section 156 of the LEIC Act provides (so far as material) as follows: Application of section (1) This section applies if: (a) the Integrity Commissioner, or another staff member of ACLEI, notifies the Minister of an ACLEI corruption issue under section 153; or (b) a person refers an allegation, or information, that raises an ACLEI corruption issue to the Minister under section 154; or (c) the Minister otherwise becomes aware of an ACLEI corruption issue. How Minister may deal with ACLEI corruption issue (2) The Minister may: (a) refer the ACLEI corruption issue to the Integrity Commissioner for investigation under Division 3; or (b) authorise a person to conduct a special investigation of the ACLEI corruption issue under Division 4; or (c) decide to take no further action in relation to the ACLEI corruption issue. (3) … 16 In a document attached to his letter, Mr Mentink referred to flaws in the ACLEI process of investigation of his complaints, including: 1. inability/unwillingness to get facts straight, 2. a preference for unchecked information derived from tabloid reports on the internet, 3. unquestioning acceptance of information from the AFP, the law enforcement agency complained of which has an appalling record of complaint handling in this matter from 2004 onwards, 4. no sign of crucial milestone documents such as reports of previous PRS investigations, 5. inability to analyze facts, whether true or not, verified or not, complete or not, 6. complete disregard for the oversight and reporting required by the Integrity Commissioner, 7. no feedback to the informant, no attempt to make contact to check data or to request information or clarification during three years (eg had I been advised in June 2009 that the matter had gone to the PRS I would have protested). 8. evidence in early July 2010 of intent to close the matter before receiving anything from the AFP, 9. no real, original investigation, but a preoccupation with protecting ACLEI in the face of external inquiries, with one exception – 10. Peter Bache's only apparent attempt at investigation around 10 November 2010, records of which were inexplicably lost, 11. inexplicable delays in progressing the matter, compounded by the file changing hands at least twice, 12. failure to recognize the problematic step of requesting the AFP to investigate given that in part I had alleged corruption in the AFP's complaint handling system, and the unacceptable involvement of Mark Walters as manager of the PRS (only the AFP was awake to that), 13. failure, in the face of my complaints, to discern the problem of Nicholas Sellars' presence in ACLEI's executive and proven involvement in the matter, compounded by the fact that ACLEI did file a "note" from another former employee at the office of the Ombudsman in 2004 giving the appearance that nothing was amiss, but no document referring to Sellars. (emphasis in original.) 17 Mr Mentink also wrote: This document deals with ACLEI's handling of the matter, not with the outcome: a minute recommending cessation of investigation, approval by ACLEI executive staff, decision by the Commissioner, and notification to me with reasons by the Executive Director. Those matters will be addressed in a separate document. Prioritization and budget considerations play no part in determining the standard of investigation expected of a body such as ACLEI. (emphasis in original.) 18 In that document there were also what appeared to be extracts of material obtained through freedom of information requests. The document contained lengthy and detailed allegations, claimed facts, and extracts of redacted material. In particular I note: Mr Mentink refers to material he claims supports an inference being drawn that the person who stole his yacht in Dili was associated with the AFP officer with responsibility for liaison between the AFP and the law enforcement agencies in East Timor. Mr Mentink refers to apparent correspondence in early June 2009 from an officer of ACLEI to the AFP, indicating that ACLEI – Mr Mentink claims improperly – had had reference to internet searches concerning Mr Mentink (including Mr Mentink's criminal history) in considering Mr Mentink's claim. In relation to this Mr Mentink wrote that ACLEI's investigation had failed to demonstrate evidence of basic investigative techniques including gathering information from the agency the subject of complaint, compilation of ongoing analysis of the evidence, comparison of facts, weighing of evidence, interim judgments and identification of further leads. Mr Mentink refers to apparent correspondence from ACLEI to the AFP listing potential corruption issues and seeking information from the AFP. Despite an apparent requirement by ACLEI that the AFP report every two months commencing from August 2009, there was no evidence of any such report being made or any attempt to follow up the failure of the AFP to make the required report. Mr Mentink claims that in early 2010 he received a letter from the AFP informing him that the Integrity Commissioner had referred his matters to the Professional Standards Unit ("PRS") of the AFP for investigation. Mr Mentink claims that it was inappropriate that "an AFP agent involved in my East Timor matters, Mark Walters, was the manager of the PRS which was now investigating those matters". Further, Mr Mentink notes that by early 2010 Mr Nicholas Sellars, who had provided a written decision from the Commonwealth Ombudsman on 10 November 2004 dismissing his complaints, was working in ACLEI, potentially giving rise to a conflict of interest in ACLEI. Mr Mentink refers to further investigations undertaken by ACLEI in July 2010, and the apparent lack of enthusiasm for the investigation by Director of Investigations Peter Bache and who, in Mr Mentink's words, "clearly intend[ed] to 'write the job off' but before doing so must do something to 'get a clear picture' in relation to something – a 'loose end' that he feels must be tied off before closing". Mr Mentink claims that despite Mr Bache's claim on 25 October 2010 to senior officers of ACLEI that the agency was investigating, no proper investigation was intended nor had taken place. Mr Mentink noted that "No activity occurred from early November 2010 … until April 2011 when Bache left ACLEI, 'handing over' the file to another person …". Mr Mentink alleges that "… ACLEI's 'investigation' consisted almost solely of deliberations in response to external stimuli: my letters, the AFP, the PJC, and various ministers". The relevant decision 19 The Minister's decision in respect of which Mr Mentink seeks review was a decision to take no further action in relation to an ACLEI corruption issue raised by Mr Mentink. This decision was made pursuant to s 156(2)(c) of the LEIC Act, and was found in the Minister's letter to Mr Mentink dated 6 July 2012. An "ACLEI corruption issue" within the meaning of s 156(2)(c) is defined by s 8 of the LEIC Act as follows: (1) For the purposes of this Act, an ACLEI corruption issue is an issue whether a person who is, or has been, a staff member of ACLEI: (a) has, or may have, engaged in corrupt conduct; or (b) is, or may be, engaging in corrupt conduct; or (c) will, or may at any time in the future, engage in corrupt conduct. (2) To avoid doubt, an allegation, or information, may raise an ACLEI corruption issue even if the identity of the person is unknown, is uncertain or is not disclosed in the allegation or information. 20 The Minister's letter provided as follows: Dear Mr Mentink, Thank you for your letter dated 12 May 2012, in which you raise allegations of corrupt conduct by the Australian Commission for Law Enforcement Integrity (ACLEI) and express your hope that I authorise a special investigation into the matter under subsection 156(2) of the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act). I note that you raised similar allegations of corruption in your letter to Senator the Hon Brett Mason on 18 March 2012. This letter was forwarded to me as the responsible Minister. Consistent with my response to Senator Mason on 2 May 2012, ACLEI's decision to cease the investigation into your complaint was based on a number of factors, including the previous investigations by the Australian Federal Police and Commonwealth Ombudsman, as well as jurisdictional issues in relation to international elements. Based on this information I advise that no further action on this matter will be taken, in accordance with subsection 156(2)(c) of the LEIC Act. Does the substantive application have merit? 21 Section 5 of the ADJR Act limits the grounds upon which an aggrieved person can seek review by the Court of a relevant decision to grounds specified in s 5(1) of that Act. It is clear from the hearing on Friday morning that, in his substantive application, Mr Mentink seeks review of the Minister's decision of 6 July 2012 on – in substance – two grounds. Those grounds are that: the Minister failed to take into account a relevant consideration, namely material provided by Mr Mentink to the Minister (annexed to Mr Mentink's affidavit filed 14 January 2013 at pp 12-30); and the Minister took into account an irrelevant consideration, namely the decision and/or reasons for decision of ACLEI. 22 Both grounds fall within s 5(1)(e) of the ADJR Act, namely that the making of the decision was an improper exercise of the powers of the Minister. 23 At the hearing Mr Mentink submitted, in summary, as follows: The nature of the Minister's decision suggests that he was confused and badly advised. The Minister's letter of 6 July 2012 did not make reference to the large volume of material submitted by Mr Mentink for the Minister's information. It is clear from the material obtained by Mr Mentink pursuant to his freedom of information request that the Minister did not have regard to Mr Mentink's material. The final decision of ACLEI not to further investigate Mr Mentink's complaints concerning the AFP was itself part of the corruption of which Mr Mentink complains. That decision is, in effect, tainted, and accordingly the Minister cannot rely on that decision. His particular complaint relates to the conduct of ACLEI in reaching its decision not to further investigate Mr Mentink's complaints concerning the AFP. Reasons must be provided to Mr Mentink for the decision of the Minister not to take action in relation to Mr Mentink's allegations of improper ACLEI conduct. 24 I have had regard to Mr Mentink's claims and material. Were the Court to exercise its discretion to grant an extension of time to permit him to lodge his application for review, I consider that his prospects of success would be poor. It follows that, in my view, the appropriate order is to refuse the application for an extension of time currently before the Court. 25 I take this view for the following reasons. 26 First, I note that the Minister's reasons for decision in his letter of 6 July 2012 were brief. However Mr Mentink's claim that the Minister was required to give more detailed reasons is not correct. As Mr McLeod submitted, the decision of the Minister to decide to take no further action in relation to Mr Mentink's allegations of ACLEI corruption was a decision under the LEIC Act, being "a decision in connection with a corruption investigation (within the meaning of that Act)" for the purposes of Sch 2 para (eaa) of the ADJR Act. In this context I further note: Decisions listed in Sch 2 of the ADJR Act are exempt from the operation of s 13 of the ADJR Act, which entitles a relevant person to (inter alia) reasons for a decision. "Corruption investigation" under s 5(1) of the LEIC Act is defined as follows: (a) an investigation of a corruption issue under this Act; or (b) an investigation of an ACLEI corruption issue under this Act (including a special investigation). "Corruption issue" and "ACLEI corruption issue" are, in turn, broadly defined by ss 7 and 8 of the LEIC Act. It does not appear to be in dispute that the Minister's decision was in connection with a corruption investigation within the meaning of the LEIC Act, and specifically in relation to the manner in which staff members of ACLEI handled Mr Mentink's complaints of AFP corruption. 27 To that extent, I do not accept Mr Mentink's submission that adverse inferences can be drawn from the absence of detailed reasons given by the Minister in his letter of 6 July 2012 or that Mr Mentink is entitled to more detailed reasons for that decision. 28 Second, and in any event, on the material before the Court I am not persuaded that, in making his decision, the Minister failed to take into account the volume of material provided by Mr Mentink in support of his complaint to the Minister concerning ACLEI. While the Minister's letter of 6 July 2012 contains a paucity of detail in respect of the decision, the Minister's letter of 2 May 2012 to Senator Mason (to which the Minister also directs Mr Mentink's attention) does not. It is clear from the Minister's letter of 2 May 2012 that, in reaching the decision to take no further action concerning Mr Mentink's complaints, the Minister was aware, and fully informed, of: the background to Mr Mentink's complaints to and against the AFP, the Commonwealth Ombudsman and ACLEI; the specific nature of Mr Mentink's complaints; the reasons that Mr Mentink had taken issue with the processes within ACLEI concerning investigation of his complaints, and the manner in which ACLEI had reconsidered its approach to the investigation; the manner in which ACLEI subsequently undertook the investigation into Mr Mentink's complaints; and the reasons for the decisions of the AFP, the Commonwealth Ombudsman and ACLEI to investigate Mr Mentink's complaints no further. 29 The failure of the Minister to accept Mr Mentink's interpretation of events does not, of itself, mean that the Minister has failed to have regard to the relevant material, including material provided by Mr Mentink. 30 Third, I am not persuaded that the material apparently obtained by Mr Mentink by way of freedom of information request demonstrates that the Minister did not have regard to Mr Mentink's material in reaching the relevant decision. It is not possible for the Court, on the state of the evidence, to reach a properly informed view of material disclosed pursuant to the FOI Act. One inference which can potentially be drawn from the material annexed to Mr Mentink's affidavit is that a significant number of independent investigative officers, across numerous agencies, were aware of and engaged in extensive investigative processes to determine whether there was substance to Mr Mentink's complaints of corruption in the AFP. Concerns in ACLEI as to possible conflicts of interest in ACLEI officers in relation to the ACLEI investigation were also apparently addressed within that agency. This material was also available to the Minister. 31 Finally, I do not accept Mr Mentink's proposition that the Minister had regard to an irrelevant consideration when, in deciding to take no action under s 156(2)(c) of the LEIC Act, the Minister had regard to the decision of ACLEI rather than the manner in which ACLEI handled the relevant investigation. The Minister clearly did have regard to the manner in which ACLEI conducted the investigation, culminating in the ACLEI decision, as was apparent from his reference in the letter of 2 May 2012 to ACLEI's "reconsideration" of the investigation. More precisely however, it would have been surprising if the Minister had not had regard to the ACLEI decision as part of the Minister's own process of reasoning. Indeed ultimately it was the ACLEI decision to take the investigation no further which was Mr Mentink's real complaint because a decision the other way would not have been the subject of complaint by him to the Minister. To that extent, Mr Mentink's claim that the Minister had regard to an irrelevant consideration in having regard to the ACLEI decision lacks merit. Conclusion 32 For the reasons I have given, the merits of Mr Mentink's substantive application are not such as to warrant the Court granting an extension of time in which to lodge an application for review. The Court ought therefore refuse the application for an extension of time. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 12 February 2013