FEDERAL COURT OF AUSTRALIA Godla v Commissioner of Police, New South Wales Police Force [2020] FCA 489 File number: NSD 2184 of 2019 Judge: BROMWICH J Date of judgment: 16 April 2020 Catchwords: ADMINISTRATIVE LAW – application for judicial review of decision under federal statute made by an agent of a state decision-maker, the Commissioner of Police, NSW – pseudonym application – where the Commissioner's agent refused applications by the applicant for permission to travel as required by s 271A.1 of the Criminal Code (Cth) in circumstances where the applicant was named on the NSW Child Protection Register – where the Minister for Foreign Affairs cancelled the applicant's passport and refused to reinstate the applicant's passport – whether decision-makers made reviewable errors under s 5, s 6, or s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – no other viable grounds of review established – application dismissed with costs Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 5(2), 6, 7, 13 Australian Passports Act 2005 (Cth) ss 12(1A), 12(2) Child Protection (Offenders Registration) Act 2000 (NSW) ss 3(1)(1a), 3(1)(n), s 14A(1)(a), s 19, s 22AA Crimes Act 1900 (NSW) s 61KC, former s 61L Criminal Code (Cth) s 271A.1 Federal Court of Australia Act 2011 (Cth) s 37AG(1)(a) Cases cited: AB v Chief Commissioner of Police [2020] FCA 14 Ammouche v Chief Commissioner of Police [2018] FCA 1703; 266 FCR 430 Jilalo v Commissioner of Police (NSW) [2020] FCA 63 MSB v Chief Commissioner of Police [2018] VCCA 345; 57 VR 360 Date of hearing: 12 March 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 64 Counsel for the Applicant: The Applicant appeared in person on his own behalf Counsel for the First Respondent: Mr J Emmett Solicitor for the First Respondent: Crown Solicitor's Office NSW Counsel for the Second and Third Respondents: Ms R Graycar Solicitor for the Second and Third Respondents: MinterEllison ORDERS NSD 2184 of 2019 BETWEEN: MR DHEERAJ GODLA Applicant AND: COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE First Respondent THE COMMONWEALTH AS REPRESENTATIVE OF THE AUSTRALIAN FEDERAL POLICE Second Respondent MINISTER FOR FOREIGN AFFAIRS Third Respondent JUDGE: BROMWICH J DATE OF ORDER: 19 MARCH 2020 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMWICH J: Introduction 1 These are the reasons for orders made on 19 March 2020, following a hearing on 12 March 2020, whereby an amended originating application was dismissed with costs. The core of that application sought judicial review of a number of administrative decisions by both New South Wales (NSW) state decision-makers and federal decision-makers, and concerned the operation of both NSW and federal statutes. 2 The applicant, Mr Dheeraj Godla, is unable lawfully to travel overseas without police permission because he is registered on the NSW Child Protection Register established by s 19 of the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). That registration followed his conviction of committing an act of indecency upon a child, being a 17 year-old female passenger that Mr Godla was transporting in his capacity as a taxi driver. Permission to travel as a registered child sex offender, for the purposes of s 271A.1(3) of the Criminal Code, so as to avoid committing an offence against s 271A.1(1) of traveling without such permission, has been refused or not granted on several occasions in 2018 and 2019. Mr Godla's passport has also been cancelled, and his application for a replacement passport has not been successful. Mr Godla challenges those decisions and seeks a range of collateral and other relief. 3 The respondents to this proceeding are the Commissioner of Police, New South Wales Police Force (who made various decisions via NSW police officers, as his agents), the Commonwealth as representative of the Australian Federal Police (AFP) and the Minister for Foreign Affairs. 4 It must be noted at the outset that, with one important exception, this Court does not have jurisdiction to review, otherwise adjudicate upon, or give relief in relation to, the operation of state law or the decisions of state decision-makers, nor to provide relief in relation to such decisions or the operation of such laws. The exception that may apply is when a state decision-maker is called upon to make a decision under a federal enactment. The making of such a decision or failure to make such a decision may be amenable to judicial review in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). 5 The decisions under challenge that may possibly be the subject of judicial review in this Court under the ADJR Act are those relating to Mr Godla's applications to the Commissioner for permission to travel and relating to the Minister's cancellation of his passport and the failure to grant him a replacement passport that he applied for, and related decisions, including decisions that Mr Godla asserts should have been made but were not. However, each of those decisions or non-decisions turn upon Mr Godla being on the Child Protection Register, which is the centrepiece of Mr Godla's case. 6 Mr Godla does not accept that his conviction is valid, or even if it was, that he is validly on the Child Protection Register. His objections to not being given permission to travel, to his passport being cancelled, and to a fresh passport not being issued, turn on that stance, rather than addressing the substance of those decisions and the reasons given for them, or the statutory basis for them being made. Thus the way in which Mr Godla's case is presented on the permission to travel and passports aspects largely depends upon the Court being able to grant relief in respect of state legislation, and in respect of decisions made under state legislation, which it cannot do. That part of his case is and always has been doomed to fail for the simple reason that this Court has no jurisdiction to grant relief of that kind. This was explained to Mr Godla at the commencement of the hearing of his application and will not be addressed further in these reasons. Pseudonym application 7 Mr Godla applied for an order that he be referred to by a pseudonym, something he had sought from the outset, but had never explained why this was needed. It is convenient to refer to this as a pseudonym order, which is also sometimes called an anonymisation order. 8 Mr Godla's reasons given orally at the hearing for seeking a pseudonym order were to do with the asserted adverse impact upon him of being named in court and in the judgment to be published. Importantly, there is no reasonable possibility of the complainant in relation to Mr Godla's conviction being identified by reason of him not being referred to by a pseudonym. 9 It is not in doubt it would be personally preferable for Mr Godla not to be named in relation to this proceeding. However there was no suggestion that being named would have any material bearing on his position in this or any other judicial proceeding. 10 That position does not change because Mr Godla foreshadowed a possible further attempt to have the criminal conviction that is detailed below overturned. Such a proceeding has little or no prospect of success given that he has already been unsuccessful in this endeavour in the Supreme Court of New South Wales. In any event, I was unable to see how failing to grant a pseudonym order would affect such a proceeding in any material way. 11 I was therefore not satisfied that there was any proper basis for a pseudonym order in this case, without even going so far as to apply the stringent applicable test for a suppression or non-publication order in s 37AG(1)(a) of the Federal Court of Australia Act 2011 (Cth) of being necessary to prevent prejudice to the proper administration of justice. In reaching that conclusion, I also had regard to a contrary conclusion reached by Wheelahan J in relation to an application for a pseudonym order in AB v Chief Commissioner of Police [2020] FCA 14 (at [118]–[123]). In reaching a different conclusion in this case, I noted that the terms of the Sex Offenders Registration Act 2004 (Vic) on the question of disclosure of the identity of a person on a child protection register are sufficiently different to the same kind of provisions in the otherwise broadly similar CPOR Act as to not necessarily require the same conclusion to be reached, noting also that his Honour was there dealing with a real risk of complainant identification. 12 The factors identified in MSB v Chief Commissioner of Police [2018] VCCA 345; 57 VR 360 at [55]-[56] as to warranting a pseudonym order, quoted by Wheelahan J and relied upon his Honour in AB v Chief Commissioner at [119]-[120], have little to no application in this case. As was pointed out in MSB v Chief Commissioner, a pseudonym order is not necessarily appropriate in every case brought in connection with a child protection register, with each case depending on its own circumstances. Such an order was neither necessary, nor appropriate, in this case. It certainly fell far short of being necessary to prevent prejudice to the proper administration of justice 13 The application for a pseudonym order was therefore refused. Adjournment application 14 The proceeding was set down for hearing on 12 March 2020 at a case management hearing of some three hours duration conducted on 30 January 2020. Mr Godla had agitated for an earlier case management hearing, for an earlier final hearing, and for interlocutory relief in the form of final relief from the time he commenced this proceeding, including seeking the grant of final relief in relation to permission to travel and in relation to the issue of a passport prior to the scheduled 12 March 2020 hearing. The course of bringing forward the determination of any relief that this Court was able to grant (which also fell well short of what Mr Godla was seeking) was not entertained because it was not viable, necessary or appropriate. This was not least because it would have required much the same process as the final hearing to take place, not simply immediate ex parte orders in chambers on the papers, as Mr Godla seemed to contemplate. All of this bespoke urgency on Mr Godla's part. The hearing was fixed on 12 March 2020, and another matter already fixed for hearing by me on that date reallocated to another judge to accommodate this urgency asserted by Mr Godla. 15 Despite this history of asserted urgency, by email sent two days before the scheduled 12 March 2020 hearing, Mr Godla sought an adjournment of the hearing in order to file a second further amended originating application (leave to amend by way of an amended originating application having previously been granted and availed of). Mr Godla was advised by email that I was not willing to grant the adjournment in chambers, but that he could raise this at the scheduled hearing. When he renewed that adjournment application at the hearing, Mr Godla's stated purpose was to bring quite different causes of action, including by way of defamation proceedings, and also to obtain from decision-makers statements as to what they had done, going well beyond statements of reasons for decisions made as provided for by s 13 of the ADJR Act. I refused that adjournment application because I was not satisfied that there was any proper reason to do otherwise. Further, Mr Godla's assertions of ill health prior to the hearing day were not supported by the medical certificate he handed up. His assertions at the bar table as to previous ill health affecting his preparation for the hearing were not supported by any evidence, a requirement that had been conveyed to him by email the previous day. Application to further amend the (further) amended originating application dated 17 February 2020 16 On the day of the lengthy case management hearing conducted on 30 January 2020, two sets of orders were made. The second set of orders were for the giving of reasons for certain decisions (consented to by the relevant respondents), and for the filing of any (further) amended originating application to replace the amended originating application filed on 6 January 2020. The first set of orders regularised the respondents. That was because the amended originating application filed on 6 January 2020 (replacing the initial originating application lodged for filing at 4.44 pm on 30 January 2019, and thus, under the rules of the Court, filed on 31 January 2019), named the following as respondents: NSW POLICE FORCE Respondent1 AUSTRALIAN FEDERAL POLICE Respondent2 CHILDREN'S GUARDIAN Respondent3 NSW CHILD PROTECTION REGISTRY Respondent4 DEPARTMENT OF PUBLIC PROSECUTION Respondent5 MINISTER OF FOREIGN AFFAIRS Respondent6 17 I painstakingly explained to Mr Godla that for a variety of reasons, most of those named parties were not appropriate respondents, either because they were not legal entities able to be sued at all, or because I was not satisfied that they had any involvement in the decisions that he wished to challenge (such as the Director or the Office of Public Prosecutions for New South Wales, due to Mr Godla's criminal prosecution being conducted by police prosecutors). After hearing from a solicitor appearing for the Director of Public Prosecutions for New South Wales (NSW DPP) I made an oral order in open court removing the "DEPARTMENT OF PUBLIC PROSECUTION" as a respondent, leaving the Minister as the fifth respondent. Later that day I made and caused to be entered the following orders: The respondents to this proceeding be named as follows: a. The first respondent be renamed "Commissioner of Police, New South Wales Police Force". b. The second respondent be renamed "The Commonwealth as representative of the Australian Federal Police". c. The third and fourth respondents be removed as parties to the proceedings. d. The fifth respondent be redesignated as the third respondent. 18 As a result the named respondents were, in order: (1) Commissioner of Police, New South Wales Police Force, as the first respondent, due to making the challenged decisions under s 271A.1 of the Criminal Code to refuse Mr Godla permission to travel; (2) The Commonwealth as representative of the Australian Federal Police, as the second respondent, due to the ostensible challenge to the seizure of Mr Godla's passport when he attempted to leave Australia illegally four days after he was refused permission to travel – this challenge was never developed and accordingly formed part of the residual part of the amended originating application that was dismissed; (3) Minister for Foreign Affairs, as the third respondent, in relation to the challenges to the decisions to cancel Mr Godla's passport and to decline to grant him a replacement passport – as will be seen, there was no power to grant that replacement passport in his particular circumstances. 19 Undeterred by his lack of success in maintaining non-legal or otherwise inappropriate entities as respondents, Mr Godla lodged for filing a (further) amended originating application dated 17 February 2020, naming the following respondents (bracketed information in original): COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS, CDPP Respondent1 [Representative for Australian Federal Police, Commonwealth Courts, Department of Foreign Affairs and Trade, Department of Employment, Centrelink, Department of Human Services – Child Support or Others] & OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS NSW, ODPP NSW Respondent2 [Representative for NSW Police Force, Child Protection Registry, Children's Guardian, Local Court of NSW, District Court of NSW, Supreme Court of NSW, Konekt Employment Services, Revenue NSW] 20 That pleading was, unfortunately, accepted for filing. 21 There was no evidence or other material to indicate that the Commonwealth Director of Public Prosecutions (CDPP) has had any relevant involvement with Mr Godla, although his summary prosecution for illegally attempting to leave Australia was probably conducted by the CDPP's Sydney Office on behalf of an AFP informant. As detailed below, Mr Godla pleaded guilty to that charge and was fined. This Court has no jurisdiction to deal with that prosecution, at least in the manner in which Mr Godla brings this proceeding, and the CDPP in any event had no apparent involvement, nor did she make any decision in relation to Mr Godla that was within the ambit of his complaints. Moreover, the CDPP cannot represent, or be sued as a representative of, any of "Australian Federal Police, Commonwealth Courts, Department of Foreign Affairs and Trade, Department of Employment, Centrelink, Department of Human Services – Child Support or Others". 22 The naming of the Office of the Director of Public Prosecutions for New South Wales (ODPP), contrary to the order made in court on 30 January 2020 acceding to a request by the NSW DPP to have the ODPP removed as a party, had three distinct problems. First, the ODPP is not a legal entity able to sue or be sued, a point that was explained to Mr Godla at length at the case management hearing on 30 January 2020. Secondly, neither the ODPP, nor any person employed by the Director made any relevant decision in relation to Mr Godla. Thirdly, neither the ODPP, nor the NSW DPP can represent, or be sued as a representative of, any of "NSW Police Force, Child Protection Registry, Children's Guardian, Local Court of NSW, District Court of NSW, Supreme Court of NSW, Konekt Employment Services, Revenue NSW". 23 Rather than going through the process of forcing Mr Godla to file a pleading that conformed with the named parties, he and the correct respondents were advised by email that I would be proceeding with the matter upon the basis that the correct respondents had been named in accordance with the first set of orders made on 30 January 2020, as the Commissioner, the Commonwealth and the Minister. Evidence and submissions 24 Mr Godla's two affidavits were read subject to relevance, and a court book prepared by the respondents was received in evidence. I also received into evidence other documentary material Mr Godla furnished to the Court at the end of the week before the hearing (and provided subsequently by the registry to the respondents). This other documentary material was received subject to relevance and also subject to any other applicable objection, of which ultimately there was none. 25 Mr Godla asserted that he was not ready for the hearing, but his concerns appeared to be about things that were entirely collateral to the matters that were capable of resolution by the Court. I allowed Mr Godla to rely upon further written submissions to those furnished by him pursuant to a procedural timetable (albeit late), which he emphasised were only in draft. 26 Mr Godla declined to make any oral submissions going to the substance of his case, and chose to leave the courtroom upon counsel for the Commissioner commencing brief oral submissions. Mr Godla was told that I would be hearing the application whether he was present or not, and that I would then be proceeding to judgment. Counsel for the Minister relied upon her written submissions. Judgment was reserved after the hearing concluded in Mr Godla's absence. Relevant legislation and case law 27 The Australian Passports Act 2005 (Cth) and the Criminal Code (Cth) were amended with effect from 13 December 2017 so that they each interacted with the fact of a person being registered on the Child Protection Register and like registers in the other states and the territories. These amendments have the effect of restricting or preventing travel overseas by such offenders, directed to the protection of children overseas. The effect of, and reasons for, the amending legislation was helpfully explained by Robertson J in Jilalo v Commissioner of Police (NSW) [2020] FCA 63 as follows: [12] Schedule 1 to the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) commenced operation on 13 December 2017. That schedule amended the Australian Passports Act 2005 (Cth). It also amended the Criminal Code Act 1995 (Cth) to insert in the Criminal Code s 271A.1. [13] The relevant provision in the Criminal Code is as follows: 271A.1 Restrictions on overseas travel by certain registered offenders (1) A person commits an offence if: (a) the person is an Australian citizen; and (b) the person's name is entered on a child protection offender register (however described) of a State or Territory; and (c) the person has reporting obligations (however described) in connection with that entry on the register; and (d) the person leaves Australia. Penalty: Imprisonment for 5 years. (2) Absolute liability applies to paragraph (1)(a). Note: For absolute liability, see section 6.2. (3) Subsection (1) does not apply if: (a) a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005) has given permission (however described) for the person to leave Australia; or (b) the reporting obligations of the person are suspended at the time the person leaves Australia. Note: The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3). [14] A competent authority is defined to mean such an authority within the meaning of s 12 of the Australian Passports Act. The relevant definition is as follows: competent authority, in relation to a circumstance mentioned in paragraph (1)(a) or (b) or (1A)(b), means: (a) a person who has responsibility for, or powers, functions or duties in relation to, that circumstance under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister's determination as not being a competent authority in relation to the circumstance); or (b) a person specified in a Minister's determination as a competent authority in relation to the circumstance. In relation to the decision made on 5 February 2020, it was common ground that the decision-maker was a competent authority. [15] The explanatory memorandum to the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill stated: The purpose of the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Bill) is to prevent Australians listed on a State or Territory child sex offender register with reporting obligations (a reportable offender) from travelling overseas to sexually exploit or sexually abuse vulnerable children in overseas countries where the law enforcement framework is weaker and their activities are not monitored. … Commonwealth legislation currently provides that a child sex offender's passport may be refused, cancelled or surrendered on the basis of a competent authority's assessment of the offender's likelihood to cause harm. This process is resource intensive, being done on a case-by-case basis, and is subject to review by the Administrative Appeals Tribunal. As a result, States and Territories do not use these provisions at all. The measures in the Bill address these constraints to protect vulnerable overseas children. There was a statement of compatibility with human rights appended to the explanatory memorandum. The conclusion of that statement was as follows [at para 33]: This Bill is compatible with human rights as it promotes and advances human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to protect the most vulnerable in the world—children at risk of sexual exploitation or sexual abuse. 28 In Ammouche v Chief Commissioner of Police [2018] FCA 1703; 266 FCR 430, Wheelahan J observed (at [58]): Section 271A.1(3) of the Criminal Code contains no express criteria by reference to which permission for the purposes of s 271A.1(3) of the Code is to be granted or withheld. Therefore, it is open to a competent authority to take account of any matter which, on a proper construction of the Act, is relevant to its objects. 29 The applicant in Ammouche unsuccessfully suggested, contrary to the above, that the scope of s 271A.1 should be read in a confined way, characterising the amendments as being "intended to focus upon child sex tourism and other forms of travel posing a real risk to vulnerable children": see [2.1] of the submissions reproduced by Wheelahan J at [60]. Those concerns were undoubtedly an important motivation in creating this legislative restriction on overseas travel by registered child sexual offenders, but this does not limit or qualify the scope of this protective legislation. In response to this submission, Wheelahan J said, in a passage that I consider is unassailably correct (Ammouche at [61]): The statement of legislative purpose in paragraph 2.1 of the applicant's particulars set out above is too narrow. While the purposes of s 271A.1 of the Criminal Code can be taken to include the prevention of child sex tourism and other forms of travel posing a real risk to vulnerable children, I do not consider that either the text of the legislation or the extrinsic material supports confining the focus of the legislation in that way. It must be borne in mind that the Victorian legislation, the operation of which will engage s 271A.1 of the Criminal Code, is the legislative response to the risk presented by offenders such as the applicant. It is the fact of the offending and the class of offending that are indicative of the risk that the legislation seeks to address by imposing reporting requirements under that legislation, including reporting in relation to overseas travel. One of the purposes of s 271A.1 of the Criminal Code is to address the risk arising where some countries do not have monitoring and reporting systems in place in relation to sex offenders. … 30 The consequences flowing from being on the Child Protection Register do not end with s 271A.1 of the Criminal Code. Section 12 of the Australian Passports Act provides that the competent authority may make a passport refusal/cancellation request. Such a request may be made in relation to a person who is an Australian citizen and a reportable offender: s 12(1A). This single request carries, at least in this case, the dual purposes of causing passport cancellation and preventing reissue of a passport unless and until permission to travel is granted. Once such a passport refusal/cancellation request is made under s 12(1A): (1) under s 22AA, the Minister must cancel an Australian passport issued to a person the subject of the request, unless, pursuant to s 19, the refusal/cancellation request has been withdrawn or can no longer be regarded as current in accordance with the usual administrative practices of the Department of Foreign Affairs and Trade (DFAT); (2) under s 12(2), the Minister must not issue an Australian passport to the person the subject of the request. Facts established by the evidence and consideration of the judicial review claims 31 On 28 April 2016, Mr Godla, then a taxi driver, was prosecuted at Manly Local Court for an offence under the former s 61L of the Crimes Act 1900 (NSW) of committing an act of indecency upon a 17-year-old passenger. The charge was defended, with Mr Godla being represented by counsel. Mr Godla and the complainant gave evidence, as did the complainant's boyfriend as a corroborating complaint witness. Mr Godla was convicted by the presiding magistrate, who found the case proven beyond reasonable doubt. The offence carried a maximum penalty on indictment of five years imprisonment, reduced to two years imprisonment when prosecuted summarily. On 7 June 2016, Mr Godla was sentenced. He was convicted, but released on an 18 month good behaviour bond. 32 Because Mr Godla's offence was committed against a child, it was a "Class 2 offence" as defined in s 3(1)(a1) of the CPOR Act as in force at that time. The conduct, if committed now, is of the same kind as currently proscribed as sexual touching under s 61KC of the Crimes Act. Mr Godla's offence therefore falls within the definition of "Class 2 offence" in s 3(1)(n) of the CPOR Act as currently in force, which is a "registerable offence" in s 3. As such, under s 19 of the CPOR Act, Mr Godla was required to be, and was, included on the NSW Child Protection Register. Under Part 3, Division 3 of the CPOR Act, he has reporting obligations in connection with his entry on that register. By the operation of s 14A(1)(a) of the CPOR Act, Mr Godla will continue to be subject to reporting obligations until at least 8 years after the date of his sentence. 33 On 20 February 2018, Detective Senior Constable Jones (DSC Jones), in company with another officer, hand-delivered an apparently standard form letter from Detective Chief Inspector Godard, the Manager of the Child Protection Registry. Mr Godla's name and address was at the top of the page, followed by the date 20 February 2018, and commencing with the salutation "Dear Reportable Offender". The letter summarised the effect of the legislative change by which the need for permission to travel was required to be obtained by persons on the register, and included the following: If you intend to travel out of Australia after 13 December 2017, you will require permission for that travel before you leave. To apply for permission, you will need to complete the attached application form, and return it to your case manager. In the normal course of events, applications should be made at least two months before the intended travel period unless the particular circumstances of the proposed travel do not allow such time. In urgent cases, you should indicate clearly in the application documentation the timeframe by which a decision is sought. If you do not receive permission, you will commit an offence against section 271A.1(1) of the Act if you leave or attempt to leave without permission. 34 Later the same day, 20 February 2018, Mr Godla emailed his case manager, Detective Senior Constable Jones (DSC Jones), without any completed application form, stating: … I would like to request for permission to travel within one week for a 30 days overseas trip. Could you please do the needful. 35 DSC Jones replied by email the same day, informing Mr Godla that he was required to fill out the application form that had already been hand-delivered to him earlier that day. 36 Despite being clearly informed as to what he was required to do, and despite being given the form by which he could make the necessary application, Mr Godla challenges the failure to grant him permission to travel based upon the email that he sent on 20 February 2018, and seeks relief under s 7 of the ADJR Act upon the ground of an asserted failure to make a decision when there is a duty to do so. 37 Even if relief could be granted upon the basis of Mr Godla's 20 February 2018 email being treated as an application for permission to travel and a decision not being made upon such an application, which is highly doubtful for a range of reasons, that does not need to be determined. Given the bare nature of Mr Godla's email inquiry, devoid of any content or useful information, and given what followed, I would not, in the exercise of discretion, grant such relief even if all other hurdles could be overcome. It is reasonable for a competent authority to seek necessary information in support of an application for permission to travel, and to do so by way of a standard form which encourages efficiency and consistency in such important decision-making. The Court should give no encouragement to judicial review applications to try to force a decision to be made on such a barren demand, which included none of the information necessary to make the risk assessment identified in the passage from Ammouche at [61], reproduced at [29] above. 38 On 30 April 2018, Mr Godla made an application in the appropriate form to the Commissioner for permission to travel to India (and Sri Lanka for a few days), pursuant to s 271A.1 of the Criminal Code, as soon as possible and/or only five days later on 5 May 2018. He proposed to return four to five weeks later and/or on 5 June 2018. 39 On 2 May 2018, Commander Kerlatec (as the Commissioner's agent), refused Mr Godla permission to travel. Much later, Commander Kerlatec provided detailed and comprehensive reasons for this decision on 11 February 2020, pursuant to s 13 of the ADJR Act, and in accordance with orders that I made by consent. A key reason for this refusal was inadequate information or supporting evidence being provided by Mr Godla about his travel plans and reasons, in the context of the offence he had committed, although the risk of reoffending was accepted to be low. The reasons given by Commander Kerlatec for the refusal of Mr Godla's first proper application for permission to travel may be summarised as follows: (1) The seriousness of the offence, which gave rise not only to the placement of Mr Godla's name on the Child Protection Register but also carried the maximum penalty of imprisonment for 5 years, was given substantial weight. (2) The 18-month length and level of supervision of the good behaviour bond which was ultimately imposed on the applicant demonstrated a concern about Mr Godla's risk of reoffending that was not insignificant. (3) The circumstances of the offence supported the conclusion that at the time of the offence Mr Godla had behaved in a way that was spontaneous and opportunistic, which bore on Commander Kerlatec's assessment of the risk he posed to the safety of children. (4) The short time – approximately two and a half years – that had elapsed since the offence was insufficient to allow Commander Kerlatec to conclude that Mr Godla no longer posed a risk to the safety of children. (5) Mr Godla's criminal history, which consisted of a breach of bail conditions, an apprehended violence order (AVO) being made against him and his contravention of a prohibition or restriction specified in that AVO, only increased Commander Kerlatec's assessment of the risk he posed to the safety of children, in addition to it demonstrating a general disregard for legal requirements on his part. Mr Godla's non-compliance with his thus far short-lived reporting obligations under the CPOR Act and his attitude towards those obligations did nothing to assuage the Commander's concerns in this regard. (6) The lack of independent monitoring to which Mr Godla would be subject during his proposed travels, combined with his stated intention of travelling alone and the lack of information provided regarding his intended accommodation and day-to-day itinerary, similarly did not give Commander Kerlatec any kind of reassurance regarding the likelihood of Mr Godla coming into contact with children while travelling. (7) The Commander gave weight to both DSC Jones' lack of support for the granting of permission to travel, and to his assessment that Mr Godla's risk of reoffending was low. (8) Even if Mr Godla had provided evidence in support of his stated reasons for travel (being to attend to his elderly parents' medical conditions and for recreational purposes), which he had not, the reasons stated were not able to outweigh the concerns set out above regarding the risk that he posed to the safety of children if he were permitted to travel. 40 Mr Godla made the following submissions in response to the above reasons. He asked for evidence explaining which register he had been placed on, why and how, saying that he had not received anything in writing from the Court since being sentenced in June 2016. Further to this, Mr Godla sought an explanation for his placement on the register despite having already completed an 18-month good behaviour bond, and despite the offence having been, he said, minor. Mr Godla stated that s 61L of the Crimes Act, the section under which he had been convicted, had been repealed. Mr Godla stated that he was never on the "Child Protection Offenders Register", that his good behaviour bond had expired in December 2017, and that "Justice Corrective Services" (which I take to be a reference to the supervision conditions of his good behaviour bond) terminated in July 2017. 41 Mr Godla argued that the legislative amendments of 13 December 2017 restricting the overseas travel of persons named on the NSW Child Protection Register should not apply to him. Mr Godla disputed the date on which his first application was stated by the reasons to have been made. Mr Godla denied that there was an assault or act of indecency, referring severally to his not-guilty plea, the difference in approach taken by the two barristers who represented him at trial, facts relating to the incident giving rise to his conviction which he regarded as having been suppressed at the time of the trial, and his subsequent focus on issues relating to parenting, custody and contesting the AVO leading to him to be out of time once he did turn his mind to seeking redress for the conviction. 42 In relation to his failure to appear in court in accordance with his bail conditions, Mr Godla stated that he was overseas in India at the time and had, from India, contacted the officer in charge to inform them of this, and said that contemporaneous contact with the court registry to request an adjournment was unsuccessful. 43 In relation to his contravention of the AVO, Mr Godla stated that he had incorrectly pleaded guilty to this offence on the advice of a Legal Aid solicitor. In relation to the AVO, Mr Godla stated that the application for the order was private, was made on false grounds, and that the magistrate had made the order for two years despite Mr Godla's ex-wife having only sought one year. In response to the comment that he had failed to comply with his annual reporting obligations under the CPOR Act, Mr Godla reiterated that he had never been placed on the register, but said that he had repeatedly attempted to comply with his annual reporting obligations. 44 In relation to concerns regarding the logistics of Mr Godla's travel raised in the reasons, Mr Godla said that since 1997 he had always travelled alone, and that he had provided an address in relation to his plans in India but not in Sri Lanka as he did not intend to book accommodation until he arrived there. In relation to the statement that he had not provided evidence in support of his stated reasons for travelling, Mr Godla said that getting a medical certificate was an expensive hassle to his aging parents, and that there was no available evidence for the family function that he planned to attend. 45 In response to the statement in the reasons that insufficient time had lapsed for Commander Kerlatec to conclude that he no longer posed a risk to the safety of children, Mr Godla pointed to his conviction-free record up until the time of the first conviction, both in Australia and in his other previous countries of residence, United Arab Emirates, Oman and India. Mr Godla disputed that he had a "poor track-record of compliance" with reporting obligations, rhetorically asking what evidence there was for this. Finally, Mr Godla pointed out that the statement of reasons did not include Commander Kerlatec's signature. 46 It is apparent from the above summary Mr Godla disagrees with the merits of many of the decisions made concerning him, from the time that he was charged with the offence arising from his time as a taxi driver, to his conviction and to him being placed on the Child Protection Register. However those are all matters concerning the operation of state law. Mr Godla's disagreement with that sequence of events, decisions, and outcomes does not rise higher than asserting that a different decision could or should have been made, with different results, without identifying or establishing any factual or legal error. Even if that was not so, and some error could be discerned, which is not the present situation, this Court must take the fact of Mr Godla being on the Child Protection Register as a state of affairs over which this Court has no say. 47 All of the allegations Mr Godla makes concerning decisions made under federal law comprise little more than repeating the paragraphs of s 5(1) and (2) of the ADJR Act, and making sweeping but unsubstantiated allegations of error or impropriety. I am not satisfied that Mr Godla has identified, let alone established, any ADJR Act reviewable error in Commander Kerlatec's decision or reasons. His challenge to the refusal of permission to travel decision made on 2 May 2018 must therefore fail. 48 On 4 June 2018, Mr Godla provided DSC Jones with a travel itinerary and family invitation and asked for it to be considered as one of the reasons for travel. On 7 June 2018, Commander Kerlatec, as the Commissioner's agent, refused Mr Godla permission to travel to Sri Lanka. Commander Kerlatec again provided detailed and comprehensive reasons for this decision on 11 February 2020, pursuant to s 13 of the ADJR Act. Again, a key reason was inadequate information being provided by Mr Godla about his travel plans and reasons, referring to the offence he had committed and accepting the risk of reoffending was regarded to be low. As the substance of the reasons was much the same as those summarised above for the decision made on 2 May 2018, there is no need to repeat them. Again, I am not satisfied that Mr Godla has identified, let alone established, any ADJR Act reviewable error in Commander Kerlatec's decision or reasons. Once more, Mr Godla's bare assertions repeating the paragraphs of s 5(1) and (2) of the ADJR Act, and limited generalised and unsubstantiated allegations beyond that, will not suffice. His challenge to the refusal of permission to travel decision made on 7 June 2018 must therefore fail. 49 In apparent deliberate defiance of the 7 June 2018 refusal of permission to travel, four days later, on 11 June 2018, Mr Godla attended Sydney Airport and attempted to depart on Air Asia flight D7223 to Kuala Lumpur. He was subsequently prosecuted for an offence against s 271A.1 of the Criminal Code, pleaded guilty, and was fined. 50 The next day, 12 June 2018, Mr Godla was notified that Commander Kerlatec (as the Commissioner's agent) was considering making a request under s 12(1A) of the Australian Passports Act to the Minister to cancel his passport. He was invited to make any written submissions. No such submissions were received. Accordingly, the foreshadowed request was made and acted upon. The request made to the Minister was not in evidence. I was informed by counsel for the Commissioner that the reason for this is that the request is made electronically, so that there is no paper request, or digital copy, to adduce in evidence. While there was no direct evidence to establish this mode of making a request, it is consistent with the available evidence, and whether or not that was the precise way in which the request was conveyed to the Minister matters not. In another case, evidence might be required. 51 The precise way in which the request was conveyed does not matter in this case because there is no doubt that the request was made, and that it was acted upon. That is so because: (1) On 15 August 2018, DFAT wrote to Mr Godla stating that the Minister had received the request from a competent authority under s 12(1A) of the Australian Passports Act and had cancelled his passport accordingly, noting that the Minister was obliged to make that cancellation decision by the express terms of s 12(2) of the Australian Passports Act. (2) On 17 February 2020, Commander Kerlatec provided his reasons for making the cancellation request, which he described as being carried out by the Child Protection Registry, I infer on his behalf. Substantial weight was placed upon Mr Godla's recorded non-compliance with COPR Act reporting requirements, the generally argumentative and defiant manner in which he appeared to conduct himself in relation to those obligations, and as a result his apparent inability to self-monitor or take active steps to minimise his risk of re-offending. In that context, given his attempts to leave Australia illegally, a lack of confidence was expressed that he would not again attempt to leave without permission. 52 Mr Godla did not make any serious attempt to engage with the objectively compelling reasons expressed for requesting that his passport be cancelled, the most important of which was his attempt to leave Australia illegally. Accordingly Mr Godla has not identified, and therefore necessarily has not established, any ADJR Act reviewable error. His challenge to the making of the request to cancel his passport must therefore fail. 53 On 17 October 2018, Mr Godla made an application to the Commissioner for permission to travel to India the next day, 18 October 2018, "if possible", proposing to return four to six weeks after departure. On 18 October 2018, Sergeant Zahra of the NSW Child Protection Registry, acting as the Commissioner's agent, determined that the competent authority would not assess the travel application because Mr Godla's passport had been cancelled. Thus no decision was ever made in respect of this application. While again there is a nice question as to whether there was a duty imposed upon the Commissioner to make a decision, Mr Godla did not seek relief under s 7 of the ADJR Act, despite having done so in relation to two emails directed to obtaining permission to travel which did not result in a decision being made. Those two emails are addressed above at [37] and below at [54]. In those circumstances, there is no decision under an enactment capable of being the subject of judicial review under s 5 of the ADJR Act. The challenge made under s 5 must fail on that basis alone. I should add that even if a challenge had been brought under s 7, it almost certainly would have failed, at least on discretionary grounds, because there was no point in considering giving permission to travel if such travel would be impossible by reason of the Minister being required by s 12(2) of the Australian Passports Act not to issue an Australian passport to Mr Godla. 54 On 17 December 2018, Mr Godla emailed DSC Jones requesting permission to travel overseas during Christmas and New Year. On the same day, DSC Jones replied saying that, as Mr Godla had moved address, he should contact a different police officer in relation to requests for travel. DSC Jones provided the email address for that officer and informed Mr Godla that he would need to complete a travel application form. That was a process that Mr Godla was by then well aware of. As with his 20 February 2018 email, considered at [19] above, Mr Godla challenges the failure to grant him permission to travel based upon the 17 December 2018 email that he sent, and seeks relief under s 7 of the ADJR Act for failure to make a decision when there is a duty to do so. Given that the response given to Mr Godla was reasonable, and he chose not to make a proper application, let alone direct it to the right person for evaluation, even if relief could be granted upon the basis of that email not being processed as an application for permission to travel and all other hurdles could be overcome, I would not, in the exercise of discretion, grant such relief. My reasons for that stance are substantially the same as for the 20 February 2018 email, with the added factor that the need for a risk assessment was greater given Mr Godla's illegal attempt to travel overseas without permission on 11 June 2018. 55 On 29 August 2019, Mr Godla made an application to the Commissioner for permission to travel to India the next day, or the day after, on 30 or 31 August 2019, proposing to return on 31 October 2019. On 30 August 2019, when the application was received, Commander Kerlatec (as the Commissioner's agent) refused permission. Commander Kerlatec again provided detailed and comprehensive reasons for this decision on 11 February 2020, pursuant to s 13 of the ADJR Act, again in accordance with orders I made by consent. Those reasons are substantially the same as the prior reasons given for refusing permission to travel, with the information Mr Godla providing being insufficient to carry out the necessary risk assessment. Once again, Mr Godla made bare assertions of reviewable error, repeating the paragraphs of s 5(1) and (2) of the ADJR Act, but has not identified beyond wild assertion any ADJR Act reviewable error in Commander Kerlatec's decision or reasons, and thus has not established any such error. His challenge to the refusal of permission to travel decision made on 30 August 2019 must therefore fail. 56 On 4 September 2019, Mr Godla applied to the Australian Passport Office for an Australian passport. On 16 September 2019, the Australian Passport Office informed Mr Godla that the application would not proceed because s 12(2) of the Australian Passports Act prohibits the issue of a travel document to him. The Minister is responsible for the Australian Passport Office. 57 The evidence makes it clear that the passport refusal/cancellation request in relation to Mr Godla, at least in its refusal aspect, has not been withdrawn and remains current, such that s 12(2) of the Australian Passports Act continues to apply. Given the terms of s 12(2), no other decision could lawfully have been made than to refuse outright to issue a passport. The decision not to proceed with the application was therefore not an alternative to issuing a passport to Mr Godla, but rather an alternative to refusing to do so. It follows that any application for judicial review under s 5 of the ADJR Act (treating the deferral as a refusal to issue a passport), or under s 6 of the ADJR Act (treating the deferral as a failure to make a decision) faced a very steep hurdle to overcome. 58 If the deferral is characterised as a decision to refuse to issue a passport, Mr Godla's challenge to that decision must fail, because that was the only ultimate decision allowed by the statute. If instead the deferral is characterised, perhaps more accurately, as a failure to make a decision in response to the passport application, the only possible decision is to refuse to issue a passport. The first way of characterising the deferral decision must result in the challenge failing; and the second way of characterising the deferral decision would be futile because it would produce the same end result of a refusal of the passport application. The Court would not exercise its discretion in the advancement of futility. This aspect of Mr Godla's challenge must therefore fail. Conclusion 59 The application for judicial review was out of time in respect of each decision or non-decision under federal statutes the subject of a challenge capable of being brought under the ADJR Act. Given that none of Mr Godla's grounds for review which are capable of giving rise to the exercise of the jurisdiction of the Court under the ADJR Act have come close to being established, nor alternatively a proper basis for the exercise of discretion to grant relief been made out, the appropriate course is to refuse an extension of time for all of the challenges to those decisions. 60 The remaining grounds fell short of engaging the jurisdiction of the Court. 61 The appropriate course adopted by the orders made on 19 March 2020 was therefore to dismiss the (further) amended originating application dated 17 February 2020. There was no reason why costs should not have followed the event. Accordingly, Mr Godla was ordered to pay the costs of all three respondents. Hearing transcript waiver application 62 On 1 April 2020, after the hearing on 12 March 2020, and after orders were made on 19 March 2020, dismissing the (further) amended originating application, Mr Godla emailed the registry as follows (omitting formal parts): I would like to request for a fee waiver for the transcript of the hearing of 12th March 2020. I approached Auscript and that they have advised to contact the registry as you hold the discretionary power for the waiver of fees. I seek waiver for the following reason: I have been unemployed for long and the costs of the transcript is too much for me to bear. Alternatively it can be postponed till the final determination of the case, as the defendants/respondents will have to bear the costs. My financial situation is grim at the moment. Looking forward to hear from you at the earliest. 63 This Court has contractual arrangements with Auscript Australasia Pty Limited for the provision of transcript. Auscript is a commercial entity, employing and paying for staff in order to provide this expensive and most important and valuable service to the Court and to litigants. Ordinarily, a litigant who wants or needs transcript has to pay for it. While there is provision for an impecunious litigant to apply for limited access to a transcript without payment, and this waiver can be granted by a registrar or a judge, impecuniosity alone is not sufficient. The real need for the transcript should be established if it is not self-evident. That need is neither established nor self-evident in this case. 64 It is unusual for the trial transcript in judicial review proceedings to be needed for an appeal to be considered, and such transcript is rarely before the Full Court in such an appeal. Such an appeal ordinarily requires an appellant to demonstrate that there was an error in the primary judgment, such that one or more of the orders made ought to be set aside or varied. In this case, the decision has been made almost entirely upon documentary evidence and written submissions, which Mr Godla already has. There was nothing material that was new in the oral submissions. The submissions for the respondents, including oral submissions, did not even need to be expressly referred to in these reasons. For these reasons I consider that there is no proper basis for the waiver of fees to obtain a copy of the hearing transcript, even assuming that Mr Godla is impecunious, which is asserted by him, not proven, but likely to be so. Accordingly the transcript fee waiver application by Mr Godla is refused. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate: Dated: 16 April 2020