FEDERAL COURT OF AUSTRALIA

Sarkisian v Commonwealth of Australia [2008] FCA 1123

Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397

Sarkisian v Australian Federal Government [2008] FCA 981

ARAKEL SARKISIAN v COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN FEDERAL GOVERNMENT

NSD 1069 OF 2008

BUCHANAN J

31 JULY 2008

SYDNEY

THE COURT ORDERS THAT:

The notice of motion filed on 14 July 2008 seeking leave to appeal against the decision of Gyles J on 25 June 2008 (Sarkisian v Australian Federal Government [2008] FCA 981) is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BUCHANAN J:

1                     Mr Sarkisian’s underlying complaint is that he arrived in Australia in 1992 at the age of 34 with a recognised diploma in engineering to take up some form of professional employment in response to an ‘announcement of the Australian government of a special immigration program to fill the gap in Australian economy with the professionals from overseas mostly from the former eastern block countries’.  Now at the age of 50, after 16 years, he says that he has been unable to find work (presumably of a suitable kind), that his life has been ruined and that he is entitled to compensation.  The compensation he seeks he has quantified at between $4,480,000 and $13,440,000 plus punitive damages.

2                     With a view to vindicating this claim he attempted, on 26 May 2008, to file an application in the New South Wales Registry of the Court.  The respondent was named as the Australian Federal Government.  The applicant’s claims were stated as follows:

‘1.        I have never been employed on a professional or other basis permanently or temporary in Australia since my arrival. (for 16 years) sixteen years.

2.         On the grounds stated in the accompanying affidavit and statement my claim is:

            Amount = from A$4,480 000 –to A$13,440 000 (four million for [sic] hundred and eighty thousand to thirteen million four hundred and forty thousand dollars) + punitive damage (details in affidavit).’

3                     The nature of his application was stated as follows:

‘Misleading interpretation of employment situation and possibilities as well as misconception of my professional emigration to Australia in the light viability to find a job through general procedures commonly accepted and carried out by different job service providers both by the government funded and private organizations, considering my arrival to Australia on a Skilled Independent Immigration program arranged by the Australian Government after recognition of my Diploma-“Mechanical Engineer” by the Australian Institute of Engineers.  1) Migration Act 1958 sect 5 permanent visa subsection 30(1) subsection 33. 2) Workplace Relations Act 1996 subsection 644(2) or (3).’

4                     An affidavit filed in support of the ‘application’ annexed a large bundle of material evidencing his efforts to find work.  The affidavit itself recounted a short history of his decision to immigrate to Australia and his subsequent failure to obtain work, along with his allegation that ‘the Australian Government should take the whole accountability’.

5                     Order 46 r 7A of the Federal Court Rules provides as follows:

‘(1)      A Registrar may refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious.

(2)       A Registrar may seek the direction of a Judge who may direct the Registrar that a document (including any document which is, or if issued will become, an originating document):

(a)        is to be accepted or issued; or

(b)        is not to be accepted or issued; or

(c)        is not to be accepted or issued without the leave of a Judge.’

6                     The documents which Mr Sarkisian attempted to file were referred to a judge of the Court for his consideration and direction pursuant to O 46 r 7A(2).  On 14 May 2008, Rares J directed the Registry not to accept or issue the documents.

7                     On 26 May 2008 Mr Sarkisian made an application for an order of review under O 54 of the Federal Court Rules, which prescribes the procedures for bringing an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The grounds of the application and Mr Sarkisian’s claim were stated in the following way:

‘The grounds of the application are:

1.         the decision made by Justice Rares referring the application and affidavit dated 12 May 2008. which is intended to be heard in the Federal Court of Australia.

2.         The content of application is presented to your attention in affidavit which is attached to application (see details in affidavit and annexure).’

Misleading interpretation of employment situation and possibilities as well as misconception of my professional emigration to Australia in the light of viability to find a job through general procedures commonly accepted and carried out by different job service providers, both by the government funded and private organizations, considering my arrival to Australia on Skilled Independent Immigration program arranged by the Australian Government after recognition of my Diploma-“Mechanical Engineer” by the Australian Institute of Engineers.

Applicants claim –

Because I have never been employed on a professional or any other basis permanently or temporary in Australia since my arrival to Australia for 16 (sixteen years).(details in affidavit and annexure) I should be financially compensated on the amount of:

            Amount = from $A 4 480 000 to $A 13 440 000 (four million four hundred and eighty thousand dollars to thirteen million four hundred and forty thousand dollars) + (plus) punitive damage.’

8                     On 25 June 2008, Gyles J dismissed the application for review pursuant to O 20 of the Federal Court Rules ands 31A of the Federal Court of Australia Act 1976 (Cth) (Sarkisian v Australian Federal Government [2008] FCA 981).  His Honour identified a number of difficulties but the principal one was that the proposed application, which Rares J directed was not to be accepted for filing, did not identify any cause of action.  With respect, that conclusion is certainly correct.  Taken at its highest the documents which Mr Sarkisian sought to file on 12 May 2008 simply stated a general grievance, finally directed at ‘the Australian Government’, that he had been unable to find satisfactory employment in this country since he arrived in 1992.

9                     On 14 July 2008, Mr Sarkisian filed a notice of motion in which he stated that he sought leave to appeal from the judgment of Gyles J.  He also sought an extension of time in which to appeal but that was not necessary.  Mr Sarkisian brought that notice of motion nominally against respondents named as Commonwealth of Australia and Australian Federal Government.  On this occasion, therefore, Mr Sarkisian has purportedly joined the Commonwealth of Australia as respondent.  Presumably he has done so because Gyles J pointed out that one of the difficulties which lay in the path of his original ‘application’ was that ‘the Australian Federal Government is not an entity known to the law’.  However, as his Honour also pointed out, ‘the Commonwealth of Australia was not responsible in any relevant way for the rejection of the documents’.  There was accordingly no warrant for bringing the present proceedings against the Commonwealth of Australia. 

10                  Mr Sarkisian was not able to demonstrate that the Commonwealth of Australia had been properly served with the notice of motion.  He told me that he had sent the notice of motion by post to the Clerk of the Senate but it was returned to him without comment.  Having regard to the view I have reached about the notice of motion it is not necessary to adjourn the proceedings to allow the Commonwealth of Australia to be properly served.  That would serve no useful purpose.

11                  It was evident that Mr Sarkisian had some difficulty understanding that the present proceedings were concerned only with whether there was an error in the judgment of Gyles J and, more generally, with the status and character of the documents he attempted to file on 12 May 2008.  They were not concerned with what view might be taken if a further attempt was made to commence proceedings by filing further documents in a different form.  As Gyles J pointed out, it would be easy enough to direct proceedings against the Commonwealth of Australia.  However, as his Honour pointed at (at [4]):

‘The difficulty is that the application as presented for filing simply does not disclose any cause of action known to the law.’

12                  I, also, attempted to impress upon Mr Sarkisian the need for him, if he wished to file further documents, to articulate a proper cause of action known to the law in Australia.

13                  The test to be applied in deciding whether leave to appeal should be granted, had the application for leave to appeal been made within time, is that stated in Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397 at 389-400 namely, whether the decision is attended with sufficient doubt to warrant its being reconsidered and that substantial injustice would result if leave were to be refused supposing the decision to be wrong. 

14                  In my view, the decision of Gyles J is not attended with any doubt which would warrant its consideration on an appeal.  Furthermore, in the circumstances, no injustice is occasioned to Mr Sarkisian by denying him leave.  The decision made by Gyles J does not prevent Mr Sarkisian from bringing a properly formulated application for relief which identifies some cause of action known to the law.  His insistence to date upon proceeding with the document which he originally sought to file does nothing to improve his overall position.  On the contrary, allowing him leave to appeal in the present circumstances would do nothing to assist him because an appeal could not possibly succeed and he would likely become exposed to an order for costs.

15                  The appropriate course therefore is to dismiss the notice of motion.

Associate:

Dated:         31 July 2008