FEDERAL COURT OF AUSTRALIA
Hu v Commonwealth Ombudsman [2009] FCA 1516
Held: appeal dismissed – no constitutional issues arose
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Federal Magistrates Act 1999 (Cth) s 45
Judiciary Act 1903 (Cth) s 78B
Ombudsman Act 1976 (Cth) s 6(1)
Federal Court Rules O 51 r 2
Federal Magistrates Court Rules 2001 (Cth) rr 4.05, 13.03A, 13.03B
Barristers Rules of Queensland 2007
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 cited
Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 cited
Buck v Bavone (1976) 135 CLR 110 cited
House v R (1936) 55 CLR 499 cited
NAQR & Anor (No. 1) v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 271 cited
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 cited
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 cited
YUAN YUAN HU v COMMONWEALTH OMBUDSMAN
QUD 201 of 2009
COLLIER J
17 DECEMBER 2009
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
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GENERAL DIVISION |
QUD 201 of 2009 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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YUAN YUAN HU Appellant
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AND: |
COMMONWEALTH OMBUDSMAN Respondent
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JUDGE: |
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DATE OF ORDER: |
17 DECEMBER 2009 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs to be taxed if not otherwise agreed.
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.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
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GENERAL DIVISION |
QUD 201 of 2009 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
YUAN YUAN HU Appellant
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AND: |
COMMONWEALTH OMBUDSMAN Respondent
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JUDGE: |
COLLIER J |
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DATE: |
17 DECEMBER 2009 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
1 I have before me a notice of appeal from Mr Hu from a decision of Jarrett FM of 14 August 2009. In that decision his Honour dismissed Mr Hu’s application for judicial review of a decision of the Commonwealth Ombudsman pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). By letter of 27 April 2009 the Commonwealth Ombudsman had decided not to investigate a complaint of Mr Hu against the Migration Agents Registration Authority (MARA). Before me Mr Hu seeks the following orders:
1. Appeal against the whole of the judgment made by Federal Magistrate Jarrett on 14 August 2009.
2. The whole of the judgment made by Federal Magistrate Jarrett on 14 August 2009 be set aside.
3. Quash the Commonwealth Ombudsman’s decision made by Mr Pezzanite on 27 April 2009.
4. Quash the Migration Agents Registration Authority’s decision made by Ms Moser on 19 June 2009.
5. The Office of the Migration Agents Registration Authority reviews their decision on my complaint against the migration agent Ms Jennifer Li-Chien Lu, which was to take no further action.
6. Commonwealth Ombudsman pays all the costs and fees to Appellant in the appeal proceedings and Federal Magistrates Court proceedings.
(reproduced as in the original document)
2 Further, by an application filed 17 August 2009 Mr Hu gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) that the appeal raised an issue under the Constitution of the Commonwealth or involving its interpretation. Mr Hu’s affidavit filed in support of this application asserts, in summary, that various decisions made by the learned Federal Magistrate contravened the doctrine of separation of powers enshrined in the Constitution. Similarly, Mr Hu gave another notice pursuant to s 78B of the Judiciary Act 1903 (Cth) on 1 October 2009 alleging various constitutional issues arising from a directions hearing on 22 September 2009 before me. At the hearing of the appeal on 1 December 2009 Mr Hu produced a letter from the solicitor for the Commonwealth Attorney-General stating that the Commonwealth Attorney-General did not wish to intervene in the proceedings before the Court.
Background
3 The background facts to these proceedings are helpfully summarised in paras [1]-[12] and [15]-[17] of the judgment of Jarrett FM. I do not understand this summary to be disputed. In those paragraphs his Honour observed as follows:
1. Mr Hu feels aggrieved by a decision made on 27 April, 2009 by a delegate of the Commonwealth Ombudsman, Mr Pezzanite. The decision challenged in these proceedings, made pursuant to s.6 of the Ombudsman Act 1976, is that the Commonwealth Ombudsman would not investigate a complaint made on 20 March, 2009 by Mr Hu against an officer of the Migration Agents’ Registration Authority.
2. Mr Hu seeks an order, amongst many others, that the Commonwealth Ombudsman’s decision not to investigate his complaint be set aside pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1975.
3. Mr Hu’s complaint against the Authority’s officer was initiated on 20 March, 2009. It concerns the actions of an officer of the Authority, Ms Vee Moser, who responded to an enquiry by Mr Hu about a complaint made by him to the Authority in 2008 concerning a particular migration agent. That complaint was finalised by the Authority in September, 2008. The Authority’s decision in relation to that complaint was the subject of a complaint to the Commonwealth Ombudsman in late 2008. In December, 2008 the Ombudsman decided not to investigate that complaint. That decision was the subject of a judicial review application that I determined on 19 March, 2009 (Hu v Giles [2009] FMCA 368). I dismissed the application.
4. The current application has its genesis in Ms Moser’s response to an email sent by Mr Hu to the Authority on 22 January, 2009. The email was addressed to Mr Brad Abbott. He had been an officer of the Authority during the currency of Mr Hu’s first complaint to the Authority in 2008. Mr Abbott was involved in the handling of Mr Hu’s first complaint and was a point of contact for Mr Hu with the Authority.
5. The email of 22 January, 2009 asked that Mr Abbott sign an email that he had sent on 18 September, 2008 (relating to the first complaint made by Mr Hu to the Authority). Mr Hu made two further requests, but they are difficult to understand. I set them out in full:
o Secondly, I have inquire is about how to protect my family privacy. I stronger doubt about Chris Campbell leak my privacy for illegal purpose. I hope to temporarily freeze my authority to MARA about my privacy.
o Furthermore, if my case has not been finalized, I request the MARA Committee to charge my complaint. If my case already has been done, I request the MARA Committee to send me the formal MARA official decision letter with the appointed authority signature by post.
(faithfully reproduced).
6. On what appears to be 29 January, 2009, Ms Moser replied to Mr Hu’s email of 22 January. She said:
o Mr Abbott is no longer employed at the Migration Agents Registration Authority (MARA). I am therefore unable to provide you with a "signed email" as requested.
o A decision on your complaint (file ref0316914-4362) was made on 9 September 2008 and notified by email to you. Following this, you raised some issues regarding the decision. On 2 October 2008 you indicated that you did not want MARA to contact you any more.
o We now consider the matter closed. As you have been advised you have a right to approach the Commonwealth Ombudsman if you are dissatisfied with our decision.
o In relation to your concerns about privacy, MARA will not release personal information about you unless it is required to do so by law.
7. On 30 January, 2009 Ms Moser sent to Mr Hu copies of some documents that had been received by the Authority from the migration agent that was the subject of Mr Hu’s complaint to the Authority. According to the evidence, they were received by him on 5 February, 2009. The documents so provided included three documents that were said to comprise the contract of retainer between Mr Hu and the relevant migration agent. In fact the three pages referred to are a letter from the migration agent to Mr Hu dated 12 March, 2007 (2 pages) and an authority bearing the letterhead of Bond & Forsyth (1 page). Bond & Forsyth appear to be the employer of the migration agent with whom Mr Hu fell into dispute. The latter document authorises the migration agent to act on Mr Hu’s behalf. It also contains some acknowledgments. It bears the date 12 March, 2007.
8. The copies of the documents supplied to Mr Hu bear a certification on each page in the following terms:
This is a true and accurate copy
of the original
(signed)
JOEY SIEN POONG CHUNG
The Justice of The Peace 180711
Date: 04 June 2008
9. Mr Hu says that the documents provided by Ms Moser are forgeries, perhaps prepared by the migration agent in response to his complaint to the Authority about her. As evidence of this, he argues that the documents are not signed on all pages by him as one might expect them to be, they are not in a sufficiently legal form and that the one page that does bear his signature is different to that which he remembers signing. Further, he says that his signature was not witnessed by “The Justice of The Peace” that certification having been placed in the documents long after he signed.
10. 4 June, 2008 is the date of the migration agent’s response to the complaint made by Mr Hu to the Authority. It seems reasonable to assume that the certification by “The Justice of The Peace” was placed on the documents for that purpose. I do not consider it reasonable to read the certification as some form of witnessing of Mr Hu’s signature on the relevant documents. It does not purport to be so. It merely appears to be certification of the correctness of the copy.
11. On 5 February, 2009 Mr Hu sent an email to Ms Moser in the following terms:
o I have received the registered post mail today. Thank you very much for your help.
o After I checked the documents inside, I did not find the email from documents which I put it in the attachment name unsigned email.
o And I also hope to confirm whether the other three documents in the attachment were the copies of the contract between the agent and I which Mara received from my former agent Ms Liu.
o Best Regards,
(faithfully reproduced).
12. On 6 February, 2009 Ms Moser responded to Mr Hu:
o We will send the signed email you have requested below in the post today. With regards to the other three documents, as far as we are aware they are the contract.
o Signed –Vee* Moser
….
15. Mr Hu’s complaint to the Ombudsman was delegated to Mr Pezzanite for action. Notwithstanding the terms of Mr Hu’s complaint, it was approached by Mr Pezzanite as a more general complaint about the reasoning process that led to the dismissal of his original complaint. In particular Mr Pezzanite understood that Mr Hu was concerned by the Authority’s view that the letter and the authority with it were “the contract” between Mr Hu and the relevant migration agent. Consistent with that understanding, on 16 April, 2009 Mr Pezzanite wrote to Mr Hu:
o So that we may better understand your complaint, could you please answer the following queries:
o 1. Do you believe that some or all of the three documents provided to you by the MARA, referred to by it as “the contract”, are fake?
o 2. Do you allege that the Migration Agent provided these fake documents to the MARA or do you allege that the MARA produced fake documents?
o 3. Did you enter into any other contract with this Migration Agent? If so, could you please provide us with a copy of it?
o 4. What impact have these documents had on your complaint to the MARA?
o 5. If the documents are fake, what information presented in those documents do you believe has been to your detriment?
o 6. What outcome are you hoping to achieve through this complaint?
o Once we receive your responses, we will then be in a better position to determine whether we need to contact the MARA and investigate the issues you have raised.
16. Mr Hu’s response made it clear that his complaint was against Ms Moser “and her conducts”. He also made it clear that he asserted that the documents said by the Authority to be the contract of retainer with the migration agent were not genuine and that they were not signed on every page by him.
17. Thereafter followed an exchange of correspondence between Mr Hu and Mr Pezzanite which culminated in the decision now under review. I will not set out in full the terms of that correspondence, suffice it to say that it consists largely of requests by Mr Pezzanite for explanations and Mr Hu’s answers to those requests.
4 I adopt this summary of background facts.
Mr Hu’s understanding of the legal process
5 With respect, in my view Mr Hu’s submissions both in Court and in writing reflect significant misapprehensions as to the nature of the legal process, the role of the Judge and Counsel, appropriate conduct of legal representatives, and indeed the basis of his own claim. Further, with respect, Mr Hu’s command of written English, while good, is sufficiently uncertain such that difficulties arise with identifying his claims and understanding his contentions. These issues have considerably complicated these proceedings.
6 So, for example:
· Mr Hu’s grounds of appeal are drafted in the style of catchwords to a judgment.
· From Ground 3 and Ground 4 of the Notice of Appeal I am not satisfied that Mr Hu understands what an affidavit is. I form this view because, to the extent that I understand these grounds of appeal, they may also be referable to an amended response and outline of submissions of the respondent. It appears that Mr Hu confuses affidavits with these other documents.
· It appears that Mr Hu does not understand, for example, that a certification by a Justice of the Peace to the effect that a contract is a true and accurate copy of the original is not an act which occurs at the time the contract is originally executed. At the hearing before the Federal Magistrate (TS No BRG 311 of 2009 p 18 ll 10-23) and before me (TS p 37 ll 34-46) Mr Hu insisted that the certification on the documents was clear evidence of the forgery of the documents. It is difficult to see how such an inference could reasonably be drawn. As I endeavoured to explain to Mr Hu at the hearing, while it is possible that the certification on the contractual documentation provided by Ms Moser to Mr Hu was forged, that does not necessarily mean that the contractual documentation itself was forged.
· At the hearing Mr Hu made the serious allegations that Counsel for the respondent had acted in breach of the Barristers Rules of Queensland 2007 (TS p 2 l 43). However it became quite clear on closer examination of this allegation that Mr Hu had simply taken issue with submissions of the respondent, including a submission that the discretion of the respondent was unfettered in terms of s 6(1) of the Ombudsman Act 1976 (Cth) (“Ombudsman Act”).
· At the hearing Mr Hu suggested inappropriate conduct by my associate in relation to a conversation and email correspondence between my associate and Ms Lye of the Australian Government Solicitor (which email correspondence was copied to Mr Hu) (TS pp 13-17 and p 8 of affidavit of Yuan Yuan Hu affirmed 1 October 2009). In fact as part of case management in this Court it is common for draft directions to be provided by lawyers for one or both of the parties to each other and the Judge prior to a directions hearing. Indeed it is not uncommon or inappropriate for lawyers for one of the parties to send draft directions the subject of communication with the other party to the chambers of the Judge prior to a forthcoming directions hearing (as occurred in this case).
· At the hearing Mr Hu submitted that there was a conspiracy between MARA and his former migration agent (TS p 47 l 42). No tenable evidence to that effect has been produced.
· At the hearing Mr Hu submitted that the Australian Government Solicitor (in this case from the Brisbane office) was disqualified from acting for the Ombudsman because the Australian Government Solicitor in its Canberra office was also the source of the letter from the Commonwealth Attorney-General informing Mr Hu that the Commonwealth Attorney-General did not intend to intervene in the proceedings (TS pp 7-8). As I explained to Mr Hu at the hearing, in the absence of further information I draw no adverse inference from this fact.
· In his written submissions (para 29) Mr Hu relied on a speech by one of the staff of the respondent delivered in Norfolk Island on 30 October 2009 in order to attack the qualifications of the respondent’s staff. This submission is misconceived and without merit.
· In his written submissions Mr Hu also investigated the professional history of the learned Federal Magistrate and attacked his Honour’s qualifications, professional standards, honesty, and “loyalty to his oath” (paras 32-37, 41). These submissions are irrelevant, scandalous, completely without merit, and bordering on contempt.
· In his written submissions Mr Hu referred to well-publicised perjury charges completely unrelated to these proceedings as justification for his allegations concerning the Federal Magistrate (paras 43-44). These submissions are misconceived, irrelevant and completely without merit.
· In his written submissions Mr Hu launched a tirade against MARA, including in relation to its budget as well as personnel of the Authority (para 53). In my view these submissions are both irrelevant and scandalous.
7 These issues have not assisted Mr Hu’s case.
Grounds of appeal
8 The grounds of appeal specified in Mr Hu’s notice of appeal are as follows:
1. Failure by Federal Magistrate to identify and apply grounds – Section 5 ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
2. Failure by Federal Magistrate to make order of review – Section 16 ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
3. Failure by Federal Magistrate to identify default – Reg 13.03A FEDERAL MAGISTRATES COURT RULES 2001
4. Failure by Federal Magistrate to make order on default – Reg 13.03B FEDERAL MAGISTRATES COURT RULES 2001
5. Failure by Federal Magistrate not to allow discovery – Section 45 FEDERAL MAGISTRATES ACT 1999
6. Failure by Federal Magistrate to identify apparent forged information in documents from filed affidavit.
7. Failure by Federal Magistrate to give adequate reasons for the decision “dismissed” – Whether a denial of natural justice – Whether Federal Magistrate erred in fact in no finding that Commonwealth Ombudsman breached the grounds of section 5 of Judicial Review Act 1977.
(reproduced as in the original document)
9 I will now turn to these grounds of appeal.
Ground 1: Failure by Federal Magistrate to identify and apply grounds – Section 5 ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
10 Section 5 of the ADJR Act provides as follows:
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
11 The first ground of appeal was not particularised. In his written submissions however Mr Hu made (in summary) the following contentions:
· The Federal Magistrate should have made an order of review pursuant to s 5(1)(j) on the basis that the decision of the Ombudsman was otherwise contrary to law.
· The Federal Magistrate should have made an order of review pursuant to s 5(1)(b),(e) and (g) on the basis that, inter alia, MARA and the Ombudsman did not identify the fraud in respect of forged documents forwarded to Mr Hu by MARA
· The Federal Magistrate should have made an order of review pursuant to s 5(1)(a) on the basis that the Ombudsman failed to take into consideration issues including that the MARA decision did not comply with MARA’s service charter, and therefore that the Ombudsman failed to apply the rules of natural justice.
· The Federal Magistrate should have made an order of review pursuant to s 5(1)(h) on the basis that the material filed demonstrated that there was no material or evidence to justify the Ombudsman’s decision.
· The Federal Magistrate should have made an order of review pursuant to s 5(1)(a),(b),(e),(g) and (h) (and, according to Mr Hu’s submissions, (I), although no such paragraph exists).
12 In my view however this ground of appeal is without merit. I form this view for the following reasons:
· First, Mr Hu’s contentions in respect of this ground of appeal include reliance on material which is irrelevant, including speeches by staff of the respondent.
· Second, in relation to Mr Hu’s claims concerning s 5(1)(j) I am unable to see how the respondent has acted contrary to law. In particular I note that s 6(1) of the Ombudsman Act vests the respondent with a very broad discretion not to investigate an action the subject of a complaint. Despite Mr Hu’s objections at the hearing to the respondent’s contention that there is nothing in this section that indicates that the discretion is fettered in any way, no material submitted by Mr Hu suggests any fetter on the discretion of the respondent in terms of s 6(1). A plain reading of the section supports a finding that the respondent’s discretion is unfettered.
· Third, in relation to his claims concerning s 5(1)(b),(e) and (g) the basis of Mr Hu’s claim is untenable. This is because it is clear that Mr Hu confuses the alleged fraud and forgery of the migration agent with the requirements of s 5 of the ADJR Act, which require, inter alia, that the decision of the decision-maker be tainted by fraud. The decision-maker is the respondent.
· Fourth, and significantly, it is in fact clear from the decision of the Federal Magistrate that his Honour identified and considered all grounds in s 5 of the ADJR Act sought to be advanced by Mr Hu. As the respondent also submitted, it is also evident from the transcript in the proceedings before his Honour that the Federal Magistrate sought clarification of each and every ground in s 5 of the ADJR Act advanced by the appellant (TS No BRG 311 of 2009 pp 10-11 and 20).
· Finally, it is clear that, with respect to Mr Hu’s claims pursuant to s 5 of the ADJR Act, his Honour made the following findings:
o In respect of the failure of the respondent to identify the relevant documentation as forgeries, the respondent had considered Mr Hu’s concerns. However the respondent ultimately considered Mr Hu’s concerns irrelevant because there was no dispute that there was an engagement of the migration agent by Mr Hu, and the substance of his complaint about the agent went to the agent’s actions and inaction rather than the form or content of the contract of retainer (at [27]). In particular, I note that the respondent’s letter to Mr Hu of 27 April 2009 following extensive correspondence targeted at gaining a complete understanding of Mr Hu’s complaint. The letter concluded:
After carefully considering the information you have supplied we have decided not to investigate your complaint. The reason for this decision is that it is not apparent that you:
1. Dispute that there was a contract between yourself and the Migration Agent, Jennifer Liu.
2. Dispute the date of “the contract” (12 March 2007), or contend that the date of the contract was a relevant issue.
3. Are alleging that the information contained in “the contract” provided to you by the MARA is incorrect. Rather you appear to be questioning the contract’s legal validity. You have not provided our office with any indication of what alternate facts might exist that you believe MARA has failed to take into account, other than expressing the general view that MARA should have not placed any reliance on the contract when it investigated your compliant.
4. Have provided any specific reasons as to why you believe your complaint against your Migration Agent should be reopened, other than your general allegations about “the contract”.
5. Have provided any information to show that an investigation by our office is likely to produce a specific remedy for you in your dealings with the MARA.
I have concluded for the above reasons, that an investigation of your complaint is not warranted in all the circumstances. Specifically, I am not satisfied that the information you have provided to our office discloses that MARA relied upon inaccurate and/or false information in its investigation of your complaint. I can appreciate that this is not an outcome you would have hoped for, however I hope you will see that we have given careful consideration to all the information you provided and have formed a view that is reasonable in all the circumstances.
o No order could be made as sought by Mr Hu with respect to the breaches of MARA’s service standards in the absence of that entity being joined as a party to the proceedings (at [23]).
o No absence of natural justice had been established in the presence of substantial correspondence between Mr Hu and the respondent. As his Honour observed:
The evidence, and specifically the correspondence between Mr Pezzanite and Mr Hu, demonstrates that care was taken to understand the underlying complaints made by Mr Hu and to seek explanation about those complaints. The reasons for deciding not to investigate Mr Hu’s complaint are clear and cogent. (at [33])
13 No material has been placed before me in these proceedings to persuade me that the decision of his Honour was attended by error such that an appeal should be allowed on this ground.
Ground 2: Failure by Federal Magistrate to make order of review – Section 16 ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
14 Section 16 of the ADJR Act provides as follows:
Powers of the Federal Court and the Federal Magistrates Court in respect of applications for order of review
(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make either or both of the following orders:
(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;
(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order directing the making of the decision;
(b) an order declaring the rights of the parties in relation to the making of the decision;
(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(4) The Federal Court or the Federal Magistrates Court may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.
15 Unfortunately, other than reference to an “order for review” Mr Hu did not specify the order he sought in terms of s 16. The respondent submitted that Mr Hu sought an order in terms of s 16(1)(b), namely referral of the matter by the Court back to the respondent for further consideration.
16 In any event however, I agree with the respondent that the types of orders that can be made pursuant to s 16 of the ADJR Act are dependent upon the Court being satisfied that one or more of the grounds in s 5 of the ADJR Act have been substantiated. In light of my findings in relation to s 5 there is no basis upon which an order pursuant to s 16 is justified.
Ground 3: Failure by Federal Magistrate to identify default – Reg 13.03A FEDERAL MAGISTRATES COURT RULES 2001
17 Unfortunately Mr Hu has not particularised this ground of appeal. So far as I can understand, it appears that this ground of appeal relates to failure of the respondent to file material in the proceedings in the Federal Magistrates Court in accordance with the Federal Magistrates Court Rules 2001 (Cth). I form this view based on the identification by Mr Hu in his submissions of r 4.05 and r 13.03A(2)(a),(b)(iv) and (vii) of the Federal Magistrates Court Rules and the following specific written submission:
Under Federal Magistrates Court Rules 2001, Rule 4.05, Rule 13.03A(2)(a)(b),(iv) and (vii). The respondent did not file affidavit with response, and in any time of the proceeding, delay the time for appellant’s preparing for respondent’s supporting documents. Those conducts were definitely default. The default conducts made the appellant have totally a few hours to prepare the litigations, infringing the appellant’s legal right.
(reproduced as in the original document)
18 So far as appears relevant, r 4.05 provides:
(1) A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on.
19 Further, so far as appears relevant, r 13.03A provides:
Rule 13.03A
…
(2) For rule 13.03B, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
20 Turning to the Court file from the Federal Magistrates Court, it appears that:
· Mr Hu filed an amended application in the Federal Magistrates Court on 22 May 2009.
· The respondent filed a response to Mr Hu’s application of 8 May 2009 on 22 May 2009.
· An affidavit was filed by Ms Lye on 2 June 2009 in support of the response.
· On 3 June 2009 His Honour ordered that the matter be set down for hearing for one day on 15 July 2009, and that Mr Hu file any further affidavits upon which he intended to rely by 4.00 pm on 10 June 2009.
· On 15 July 2009 the respondent filed an amended response and an outline of submissions. (Mr Hu said in his outline of submissions that Ms Lye had emailed these documents to him on 14 July 2009.)
21 At the hearing before his Honour on 15 July 2009 Mr Hu said the following:
And, also, the relevant rules applied to them. The response must file (indistinct) affidavit and the response must give precisely and briefly state any orders sought and the basis on which orders are sought, but they failed in this. So, that caused untrue statement take into this - consideration and make loss to me and also I think in this proceeding, Ms Jenna filed documents on - the last affidavit on 2 June, but send me - I mean handing me the affidavit just 10 minutes before entering the Court. I thought they have deafult in the Court and if your Honour says they are default, then they should actually get order in my application. (TS No BRG 311 of 2009 15 July 2009 p 8 ll 1-9)
22 From this summary I understand that the following issues are potentially relevant to this ground of appeal:
1. Ms Lye’s affidavit, answering the description in r 4.05(1) was filed on behalf of the respondent 10 days after the response was filed. Arguably, by filing the affidavit late, the respondent has failed to “do any act required to be done by these Rules”, in particular r 4.05(1) and r 13.03A(2)(b)(vi).
2. As I have already noted, the respondent filed an amended response on 15 July 2009 (that is, out of time) after emailing a copy of this document to Mr Hu the previous evening. The respondent also handed to his Honour a written outline of submissions at the hearing.
23 In relation to these issues I make the following observations.
24 First, in relation to the filing of Ms Lye’s affidavit 10 days after the response was filed, while this may have been in breach of the rules it is difficult to see how Mr Hu was prejudiced given that the hearing was not until 15 July 2009.
25 Second, in relation to the filing of the amended response by the respondent on 15 July 2009, and the submission of a written outline by the respondent on the same day, I note from the transcript of the hearing before his Honour that:
· at the hearing Ms Lye explained to his Honour the circumstances in which the amended response was sought to be filed in Court, namely that she had only recently received Mr Hu’s amended application dated 22 May 2009. It appears that Mr Hu had hand-delivered his amended application to the Brisbane office of the respondent. The notice for service for the respondent however was actually the office of the Australian Government Solicitor as from 22 May 2009.
· the amended response addressed five additional orders sought by Mr Hu in his amended application.
· his Honour accepted this explanation, and permitted the amended response to be filed in Court (TS No BRG 311 of 2009 15 July 2009 p 2 l 45 to p 3 l 5, p 4 ll 17-41).
26 I note further that none of this activity related to directions made by his Honour in this matter. The only directions of his Honour were dated 3 June 2009 when his Honour ordered that:
1. The application is listed for trial on 15 July 2009 with an agreed hearing estimate of one (1) day.
2. The applicant file and serve any further affidavits on which he intends to rely at hearing no later than 4.00 pm on 10 June 2009.
3. Costs reserved.
27 At para 35 and para 36 of the reasons for decision his Honour found that any non-compliance by the respondent with directions was insignificant, and that no prejudice was occasioned to Mr Hu by these events. I agree. I have also examined the response of the respondent filed 22 May 2009, and compared it with the amended response filed 15 July 2009. Both are documents of one and a half pages. The only amendments to the response included in the amended response were:
· updating the reference in the response to the orders sought by Mr Hu in his amended application filed 22 May 2009;
· updating the reference in the response to Mr Hu’s amended application for review filed 22 May 2009;
· updating the reference to orders which the Federal Magistrates Court did not have power to make to include orders 32, 33, 34 and 35 sought by Mr Hu;
· including a new ground of opposition as follows:
4. Order 31 seeks the Respondent to pay the Applicant’s costs. The Respondent contends that costs should follow the event.
28 In my view the amended response relied on by the respondent, and accepted for filing by his Honour, contained such minor changes to the original response that Mr Hu did not suffer prejudice from the late filing of this document. I do not accept Mr Hu’s contention that, as a result of the filing of the amended response on 15 July 2009, that he had “only a few hours to prepare the litigations (sic)”.
29 I am unable to identify any error in his Honour’s judgment whereby his Honour declined to make orders in default in Mr Hu’s favour.
Ground 4: Failure by Federal Magistrate to make order on default – Reg 13.03B FEDERAL MAGISTRATES COURT RULES 2001
30 Ground 4 relates to ground 3 in the notice of appeal. In his submissions, Mr Hu contended:
Under Rule 13.03B(2)(b)(d)(e) and (3), the Magistrate should order the respondent to pay appellant’s cost in the proceeding and judgment against the respondent. But the Magistrate failed in identifying the respondent’s default conducts and failed in making default order on the appellant’s favour.
31 I understand that Mr Hu contends that the Federal Magistrate should have given judgment in his favour or made an order against the respondent in terms of r 13.03B(2)(d) because of the failure of the respondent to file an affidavit in support of its response on the same date as the response.
32 This ground of appeal is untenable for the same reasons that I have given in relation to ground 3.
Ground 5: Failure by Federal Magistrate not to allow discovery – Section 45 FEDERAL MAGISTRATES ACT 1999
33 Section 45 of the Federal Magistrates Act 1999 (Cth) provides as follows:
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a FederalMagistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the FederalMagistrates Court or a Federal Magistrate must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.
34 It appears that Mr Hu first raised the issue of discovery at the actual hearing before his Honour on 15 July 2009. The transcript shows the following statement by Mr Hu:
If it would – can’t make that, I think I should take the – sought order number 2 into the specific (indistinct) together which was – or the Commonwealth Ombudsman’s decision. I mean just the Commonwealth Ombudsman’s office to investigate my complaint. I just want to add this into those 12 orders I especially want. Discovery of or inspection to the court contract and to transfer the (indistinct) in the Court and prosecuting authority because this issue has happened over three years since I have made the arrangement, make a contract with this agent and MARA’s delegate, Mr Cambere and Moser and also Ombudsman’s delegate. (TS No BRG 311 of 2009 15 July 2009 p 25 ll 7-15)
35 In NAQR & Anor (No. 1) v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 271 Driver FM took the view that there is a rebuttable presumption in proceedings in the Federal Magistrates Court that discovery and interrogatories will not be permitted, consistent with Parliament’s direction under s 33 of the Federal Magistrates Act that the Court should act informally and use streamlined procedures (at [5]). In my view this accurately represents the position in respect of s 45 of the Federal Magistrates Act.
36 I also consider however that s 45 of the Federal Magistrates Act vests Federal Magistrates with discretion to order discovery in the circumstances prescribed by the section.
37 In my view the fifth ground of appeal cannot be substantiated for two reasons.
38 First, on the basis that his Honour had discretion to order discovery in this case, no satisfactory case has been made to me warranting interference with the decision of his Honour in circumstances contemplated by Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR 499 at 505.
39 Second, and in any event, Mr Hu has not established that the interests of the administration of justice would have been served by his Honour making an order allowing discovery pursuant to s 45. I accept the submission of the respondent that, in light of the fact that the first time Mr Hu raised the issue of discovery was at the hearing itself before his Honour, it would not have contributed to the “fair and expeditious conduct of the proceedings” for his Honour to have ordered discovery at such a late stage.
Ground 6: Failure by Federal Magistrate to identify apparent forged information in documents from filed affidavit
40 A substantial proportion of Mr Hu’s written submissions concerned the alleged failure of his Honour to identify apparently forged documents provided to Mr Hu by Ms Moser of MARA. The first point to note is that it was not the task of the Federal Magistrate to investigate whether documentation provided by MARA to Mr Hu was forged by the migration agent. In the circumstances of this case it was the task of the Federal Magistrate to consider whether there were grounds for an order of review of the decision of the respondent for any of the reasons set out in s 5 of the ADJR Act (cf comments of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at 26).
41 Mr Hu’s submissions in relation to this ground of appeal are, in substance, an attack on the qualifications and professional standards of his Honour in failing to identify forgeries claimed to exist by Mr Hu. In this respect this ground of appeal is completely without merit.
42 Nonetheless secondly, Mr Hu submits that the respondent failed to take into account relevant considerations in making the decision not to investigate. This is potentially a ground for an order of review in terms of s 5(1)(f) of the ADJR Act. In particular I note comments of Dixon J in Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360:
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.
(cf Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [8], Buck v Bavone (1976) 135 CLR 110 at 118-9)
43 However, Mr Hu’s submissions in respect of this issue are untenable. The considerations to which the respondent should have had regard are, in Mr Hu’s submissions, as follows:
· What Mr Hu refers to as “Mara’s written direction” at p 194 of the Appeal Book. However on examination of the Appeal Book, it appears that “Mara’s written direction” at pp 193-195 of the Appeal Book is actually a reference to the terms of “Written Directions Pursuant to Section 319A of the Migration Act 1958” issued by the Migration Institute of Australia, and in particular to guidelines to delegates of the Institute in relation to disciplining of migration agents. In my view this is not a consideration to which the respondent need have regard in making a decision.
· MARA’s service charter. In my view the contents of this document are not a consideration to which the respondent need have regard in making a decision.
· What Mr Hu refers to in his outline of submissions at para 27 as “Mara’s delegate failed to identify such simply logical finding in the materials [A.B.77][A.B.81]”. The materials referred to at these pages of the appeal book are respectively the final page of a “response to complaint” executed by the migration agent, and a file note of Mr Hu. It appears that Mr Hu is submitting that, on the material before it, logically MARA should have concluded that the documents provided to him by Ms Moser were forgeries. I note however that want of logic does not form a valid basis of judicial review: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286. In any event the basis upon which Mr Hu submits that the decision of the MARA delegate was illogical is unclear – it appears that Mr Hu’s primary submission in this respect is that MARA, the respondent and the Federal Magistrate were illogical simply because they have adopted views inconsistent with those of Mr Hu.
· “Expert evidence from migration specialist Mr Michael Jones” was ignored. The correspondence from a solicitor to Mr Hu to which Mr Hu refers is not expert evidence for the purposes of these proceedings. However in any event I have considered the letter from Mr Jones included in the appeal book, and cannot see how either:
o the letter supports Mr Hu’s case in these proceedings; or
o the letter was a consideration to which the respondent should have had regard in reaching its decision.
44 Finally, and in any event, his Honour considered the issue of forgery raised by Mr Hu. His Honour observed that Mr Hu had not denied the existence of a contract between himself and the migration agent, but rather was concerned that a subsequent copy provided to MARA by the migration agent was not in the form that he recalled, and included an improper certification. He alleges in particular that his wife would have signed the documentation had it been legitimate. It is clear that before both his Honour and this Court Mr Hu:
· denied that the documents provided to him by MARA were “the real contract” between himself and the migration agent; and
· continued to submit that the alleged certification by a justice of the peace on the documents was faked, as particularly evidenced by the absence of a “stamp” and the form of the certification (which referred to “The Justice of the Peace” instead of “Justice of the Peace”).
45 At [27] of the reasons for decision his Honour found as follows:
In summary, Mr Pezzanite concluded that whilst Mr Hu had some issue about the characterisation of the three documents referred to above as a contract with the relevant migration agent, the issues were ultimately irrelevant. They were irrelevant because there was no dispute there was an engagement of the migration agent by Mr Hu. The substance of his complaint about the agent went to the agent’s actions and inaction rather than the form or content of the contract of retainer.
46 Later his Honour said:
In my view, the evidence simply does not establish any of the matters complained of by Mr Hu concerning the conduct of the Commonwealth Ombudsman or Mr Pezzanite. The evidence, and specifically the correspondence between Mr Pezzanite and Mr Hu, demonstrates that care was taken to understand the underlying complaints made by Mr Hu and to seek explanation about those complaints. The reasons for deciding not to investigate Mr Hu’s complaint are clear and cogent. (at [33])
47 In my view it was open to the Federal Magistrate to make these findings.
48 Finally, Mr Hu submitted that the documents provided to him by Ms Moser were clearly forged because his wife’s signature did not appear on them. The presence or absence of the signature of Mr Hu’s wife is neither here nor there in the absence of relevant evidence and a case based upon that evidence.
49 In this respect no appellable error appears on the face of his Honour’s reasons.
Ground 7: Failure by Federal Magistrate to give adequate reasons for the decision “dismissed” – Whether a denial of natural justice – Whether Federal Magistrate erred in fact in no finding that Commonwealth Ombudsman breached the grounds of section 5 of Judicial Review Act 1977
50 In my view this ground of appeal is untenable in that:
· Adequate reasons were given by his Honour in relation to Mr Hu’s application. In particular, I note his Honour’s observations at [13]-[14] where his Honour said as follows:
13. On 20 March, 2009 Mr Hu made the complaint relevant to this application to the Commonwealth Ombudsman. It is clear that his complaint is against Ms Moser, whose only participation in this affair seems to have been to answer Mr Hu’s emails of January and February, 2009. In his letter of complaint, Mr Hu asserts that: “In my understanding, Ms Moser has made a decision, which was not reasonably open to make in the circumstances.” The decision is said to be contained in Ms Moser’s reply to Mr Hu on 6 February 2009 set out above. Mr Hu’s assertion is that Ms Moser has decided that the three documents referred to in her email were the contract between him and the relevant migration agent.
14. The difficulty with Mr Hu’s argument is that Ms Moser decided no such thing. She merely relayed information to Mr Hu at his request. She merely provided copies of documents on the Authority’s file to Mr Hu. She played no part in the determination of Mr Hu’s complaint to the Authority about the agent. That was done by others within the Authority and is the subject of my earlier decision: Hu v Giles [2009] FMCA 368.
· As his Honour observed in para [32] of the reasons for decision, Mr Hu has not been the subject of a denial of natural justice by the respondent. Indeed I note that Mr Paul Bluck of the respondent’s office also undertook a further informal review of Mr Hu’s complaint and the respondent’s formal handling of the matter at the commencement of these proceedings in the Federal Magistrates Court, to assist Mr Hu understand the decision.
· I am not persuaded by Mr Hu’s general claim that his Honour erred in respect of his findings concerning s 5 of the ADJR Act.
Notices of Constitutional Matters
51 Finally, Mr Hu has filed two Notices of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth).
52 The first notice filed 29 September 2009 (“first notice”) provides as follows:
NOTICE OF A CONSTITUTIONAL MATTER
1. YUANYUAN HU, the appellant gives notice that the above proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.
2. In the proceeding of [2009] FMCA 785, Ombudsman’s office has influenced the decisions of Federal Magistrate Jarrett.
3. In the proceeding of [2009] FMCA 785, Federal Magistrate Jarrett did not interpret the legislation, but replace the practicing of Ombudsman’s exercising of the legislation.
4. The matter is one to section 78B(1) of the Judiciary Act 1903 applies.
5. The matter is one to section 78B(2) of the Judiciary Act 1903 applies.
6. The matter is one to section 78B(3)(a) of the Judiciary Act 1903 applies.
7. The matter is one to section 78B(5) of the Judiciary Act 1903 applies.
53 The second notice filed 1 October 2009 (“second notice”) provides as follows:
1. YUANYUAN HU, the appellant gives notice that the above proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.
2. In the proceeding of QUD201/2009, Ombudsman’s office has influenced the decisions of Federal Justice Collier.
3. In the proceeding of QUD201/2009, Federal Justice Collier did not interpret the legislation, but not obey the legislation under 78B of the Judiciary Act 1903.
4. The matter is one to section 78B(1) of the Judiciary Act 1903 applies.
5. The matter is one to section 78B(2) of the Judiciary Act 1903 applies.
6. The matter is one to section 78B(3)(a) of the Judiciary Act 1903 applies.
7. The matter is one to section 78B(5) of the Judiciary Act 1903 applies.
54 Mr Hu contended at the hearing before me that he had served a notice on the Commonwealth Attorney-General. A copy of a letter to Mr Hu from the Australian Government Solicitor on behalf of the Commonwealth Attorney-General dated 5 November 2009 was tendered as an exhibit by Mr Hu at the hearing. In the letter Mr Hu was informed that the Commonwealth Attorney-General would not be intervening in the Federal Court proceedings.
55 It is not clear whether the second notice was served on all State and Territory Attorneys as required by O 51 r 2 of the Federal Court Rules. Further, it is not clear whether the first notice was served on any of the Attorneys as required by O 51 r 2.
56 In the absence of evidence to this effect, constitutional issues raised in the notices do not arise.
57 In any event however:
· Mr Hu did not press issues in respect of the notices at the hearing before me.
· In relation to the first notice there is no basis for an allegation that the respondent influenced the decisions in proceedings before his Honour. I agree with the respondent that, although Mr Hu may be dissatisfied with his Honour’s decision, that decision is not tainted by any error, including one arising in respect of the Constitution. In any event the basis upon which Mr Hu alleges a constitutional issue in terms of s 78B of the Judiciary Act 1903 (Cth) is not clear to me.
· In relation to the second notice I am unable to identify any matter arising under the Constitution. It does not appear that Mr Hu has alleged bias in respect of my orders of 22 September 2009. In relation to draft directions submitted by the respondent for consideration in relation to the directions hearing of 22 September 2009, this is consistent with O 10 r 5 of the Federal Court rules which provides:
On a directions hearing, each party shall, so far as is practicable, apply for any interlocutory order or directions which he may require.
Mr Hu has not challenged the validity of O 10 r 5.
In relation to the fact that the appeal was heard by me in accordance with s 25(1A) of the Federal Court of Australia Act 1976 (Cth) when Mr Hu had pressed for the appeal to be heard by a Full Bench, in the absence of a challenge to the validity of s 25(1A) no error or constitutional matter arises.
Conclusion
58 In my view the appropriate orders are that the appeal be dismissed, and that Mr Hu pay the respondent its costs to be taxed if not otherwise agreed.
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I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
Dated: 16 December 2009
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Counsel for the Appellant: |
The Appellant appeared in person |
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Counsel for the Respondent: |
Mr G Del Villar |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
1 December 2009 |
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Date of Judgment: |
17 December 2009 |
