Cwalino v Honourable Brendan O'Connor [2011] FCA 1257

Cwalino v Honourable Brendan O'Connor [2011] FCA 1257

The respondent fairly and properly conceded that the applicant may not have been afforded procedural fairness because substantial submissions providing additional information were not received in the Minister's office until after the 9 May 2011 decision and post-dated the departmental recommendation adopted by the Minister. The Court therefore granted an extension of time and set aside the Minister's decision.

Jurisdiction
Australia
Judgment Date
03 November 2011
Procedural Posture
Application for an Extension of Time to Apply for an Order of Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) and Judicial Review of a Refusal of Consent to International Transfer of a Prisoner / Hearing and Final Orders
Outcome
Extension of time granted; respondent Minister's decision of 9 May 2011 set aside; no order as to costs.
Legal Topics
['extension of Time' 'judicial Review' 'procedural Fairness' 'international Transfer of Prisoners' 'ministerial Discretion' 'policy Instruments in Administrative Decision Making']
['administrative Law'] ['extension of Time' 'judicial Review' 'procedural Fairness' 'international Transfer of Prisoners' 'ministerial Discretion' 'policy Instruments in Administrative Decision Making']

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Procedural Posture

Application for an Extension of Time to Apply for an Order of Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) and Judicial Review of a Refusal of Consent to International Transfer of a Prisoner / Hearing and Final Orders

Legal Issues

  1. 1 ['Whether an extension of time should be granted to file and serve an application under the ADJR Act.' "Whether the respondent Minister's decision of 9 May 2011 refusing consent to the applicant's transfer to Canada should be set aside." 'Whether the applicant may not have been afforded procedural fairness because her submissions were not received before the Minister made the decision.' "Whether the Minister's use of a policy instrument in deciding whether to consent to transfer was unauthorised, ultra vires, or an undue fetter on discretion."]

Ratio Decidendi

The respondent fairly and properly conceded that the applicant may not have been afforded procedural fairness because substantial submissions providing additional information were not received in the Minister's office until after the 9 May 2011 decision and post-dated the departmental recommendation adopted by the Minister. The Court therefore granted an extension of time and set aside the Minister's decision.

Court Disposition

Extension of time granted; respondent Minister's decision of 9 May 2011 set aside; no order as to costs.

Orders

  • ['An extension of time to file and serve an application under the ADJR Act be granted.' 'The decision of the respondent Minister of 9 May 2011 be set aside.' 'No order as to costs.']