FEDERAL COURT OF AUSTRALIA

Sarkisian v Australian Federal Government [2008] FCA 981

Federal Court of Australia Act 1976 (Cth), s 31A

Federal Court Rules, O 20, O 46 r 7A(2)

Bahonko v The Commonwealth [2008] FCAFC 16 cited

ARAKEL SARKISIAN v AUSTRALIAN FEDERAL GOVERNMENT

NSD 757 of 2008

GYLES J

25 JUNE 2008

SYDNEY

THE COURT ORDERS THAT:

The application for an order of review be dismissed. 

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The circumstances are as follows.  On 12 May 2008 the applicant, Arakel Sarkisian, presented to the Registry of the Court two documents for filing – an application dated 12 May 2008 and an affidavit in support of that application.  The documents were referred to Rares J for his consideration and direction under O 46 r 7A(2) of the Federal Court Rules.  On 14 May 2008, pursuant to that rule, his Honour directed the Registrar not to accept or issue them.  His Honour said:

“I am of opinion that the documents do not disclose a cause of action or any reasonable ground capable of invoking the jurisdiction of the court.  In those circumstances the documents are on their face an abuse of the process of the court and frivolous and vexatious.”

2                     Accordingly, the documents were rejected for filing and were returned to Mr Sarkisian.  He then filed an application for an order of review which lists the Australian Federal Government as respondent and seeks to review the decision, so it would be said, to reject his application and affidavit.  The affidavit in support of this application is the same affidavit as was originally sought to be filed.

3                     There are a number of difficulties with the matter.  The first is that the Australian Federal Government is not an entity known to the law, but that can easily be amended to the Commonwealth of Australia.  However, the Commonwealth of Australia was not responsible in any relevant way for the rejection of the documents.  The second question is whether or not a decision under O 46 r 7A(2) is capable of being reviewed in this fashion.  If it is, the third question is who is the proper respondent, or who are the proper respondents.  However, the underlying question is whether or not the application as presented was, on its face, as Rares J described it.  If it were such a document then it would be liable to be dismissed under O 20, and under s 31A of the Federal Court of Australia Act 1976 (Cth).  I will mark as exhibit A a copy of the document which was sent from the Registrar to Mr Sarkisian, which includes a copy of the application sought to be filed and the substance of the affidavit sought to be filed.

4                     The difficulty is that the application as presented for filing simply does not disclose any cause of action known to the law.  It reflects a grievance which Mr Sarkisian has against the Australian Government.  I give a very brief summary.  His case is that he was, in effect, lured to Australia by misleading promises or statements as to the nature of the job market in Australia for people of his qualifications and that following his immigration to Australia he has been unsuccessful in obtaining employment suitable for a person of his qualifications, contrary to the assurances that he says he was given prior to his deciding to immigrate to Australia.  I have endeavoured to try and summarise what Mr Sarkisian has put in a discursive fashion in his affidavit and his address to me today.  The proposed application was not in a form which identifies any cause of action, and whether there is a cause of action in those circumstances is, with respect to him, highly doubtful.  It certainly has not been framed in a way which could be ruled upon by the Court. 

5                     I mention another serious difficulty for Mr Sarkisian, even if he could find a cause of action.  His decision was made in 1992 when he came to Australia and, if there were a cause of action against the Australian Government, it is almost certain to now be statute barred, that is, too late to be brought against the Government because of limitation of action, although, of course, the Government need not take that point.

6                     It seems to me that the direction given by Rares J was inevitable because the document concerned simply was not in a form which could properly be accepted.  It seems to me that, without giving any legal advice to the applicant, in pursuing his grievance he must, if he can, obtain some legal advice to help him frame the document in a way which at least raises an arguable question.  There may be other avenues that he can pursue.  I give no assurance that is the case, but it is conceivable that he could have a complaint that the Commonwealth Ombudsman might take up.  It may be again that there is some complaint that could be made to the Human Rights and Equal Opportunity Commission.  I do not wish to suggest that these will be avenues of redress. 

7                     Under the circumstances, bearing in mind the matter has not been served, that there is no proper respondent and that the application for an order of review is bound to fail because the underlying document is simply not in a form capable of being filed, this application for an order of review is dismissed pursuant to O 20, and pursuant to s 31A of the Federal Court of Australia Act 1976 (see Bahonko v The Commonwealth [2008] FCAFC 16).

Associate:

Dated:         27 June 2008