FEDERAL COURT OF AUSTRALIA

Hu v Giles [2010] FCA 174

THE COURT ORDERS THAT:

1.                  The Application is dismissed.

2.                  The Applicant is to pay the Respondent’s costs of and incidental to the application to be taxed, if not 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     Mr Hu who is the Applicant today, seeks an extension of time under the Federal Court Rules within which to appeal against a decision given in the Federal Magistrates Court last year.  An extension of time is necessary because the prima facie period of twenty-one (21) days after the decision of the lower court was given has well and truly passed.  That is not an insurmountable hurdle, but it is nonetheless a hurdle. 

2                     The leading authority in relation to the granting of an extension of time within which to appeal is a decision of the Full Court of this Court, Jess v Scott (1986) 12 FCR 187.  I note that neither party suggests otherwise than that this decision contains an appropriate survey of principle.  That this is so in respect of the submissions of a litigant in person is but one of a number of commendable features in relation to the way in which Mr Hu presented his submissions both orally before me today and earlier in written submissions lodged by direction.  It is a mark of his attention to the requirements of the rules and governing principles that he has himself appreciated that the Full Court’s decision in Jess 12 FCR 187 contains the appropriate guidance for me today. 

3                     In that regard, at 195 the Full Court observed of the relevant rule: 

It should not be overlooked that [the rule] enables leave to be given “at any time”, the “special reasons” relevant to such a power cannot but describe an elastic test suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year.  Equally, it may be said something much less significant might justify leave where a party is a few days late.  “Special reasons” must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure in the particular circumstances from the ordinary rule prescribing a period within which an appeal must be filed and served.

4                     One factor which is relevant to the discretion described in the passage quoted from Jess 12 FCR 187 is whether there is a reasonable explanation for the delay.  Another is an examination of the underlying merits of the proposed appeal. 

5                     In relation to delay, Mr Hu points to an elapse of some forty (40) days which occurred after the request which he made for provision of written reasons for judgment until the time when those written reasons came ultimately to be furnished to him via the Federal Magistrates Court registry.

6                     This is a case where the learned federal magistrate delivered his reasons for judgment orally (or ex tempore as one might say in a more technical terminology), as I am doing at the moment.  There is no obligation on a judicial officer to deliver only written reasons for judgment.  There is nothing at all unusual, much less improper, about the delivery of reasons orally.  Indeed, that practice has the advantage of conveying, where litigants are present in person, the Court’s reasons directly to that or those litigants. 

7                     Moreover, the scope for revision of reasons once delivered is very limited indeed.  In other words, once reasons have been delivered orally, they are the Court’s reasons, subject, to a limited scope for revision in respect of matters of grammar or style, but not the substance of the reasons. 

8                     Thus, when the learned federal magistrate came on 19 March 2009 to deliver his decision and the reasons for it orally, what was conveyed to Mr Hu was the outcome of the case and the reasons.  These matters acknowledged, it is unfortunate that a length of forty (40) days elapsed following the request for revised, written reasons.  There may well be reasons for that and it is not necessary to explore that.  However, as a matter of first blush impression, it is nonetheless unfortunate. 

9                     It is by no means impossible to see how a litigant, particularly one whose first language is not English, may be assisted in deciding whether or not to appeal by the receipt of written reasons.  That is not, in any way, to say that Mr Hu is not fluent in English.  His submissions today were eloquent in that regard.  Nonetheless, it was equally apparent that English was not his first language. 

10                  These matters acknowledged as well, in itself, the lapse of time that has occurred, even allowing for a forty (40) day delay, is very significant. 

11                  That, of course, does not foreclose matters.  One must look, nonetheless, to prospective merit.  It is by no means impossible, having regard to the test, or at least to the broad statement of principle enunciated in the passage quoted from Jess 12 FCR 187, to see how a case, even where there was a significant lapse of time, might nonetheless warrant an extension where merits had a compelling quality, and other factors, such as the unsettling of settled expectations, did not intrude. 

12                  I turn, therefore, to a consideration of the merits of the proposed appeal.  In that regard, again, Mr Hu’s submissions are focused.  Focused in the sense of providing a basis for looking to why it is, or is not, that the proposed appeal has merit. 

13                  In his affidavit, Mr Hu has identified reasons why leave should be given.  One I have already mentioned, which is the lapse of time that occurred in the despatch of reasons for judgment.  Another is that Mr Hu was unrepresented, although that, in itself, would not warrant an extension but it is a factor to take into account.  More pertinently, so far as proposed merits are concerned, is para 4(c) of Mr Hu’s affidavit, in which he states as to a reason why leave should be given:

The applicant made another application at Federal Magistrates Court, who hoped the magistrate, would redress his mistake himself.  But the magistrate insisted his wrong decision, and ignored the evidence before him, kept on referring from the wrong decision.  Which made the fact that the decision must be reviewed.  Otherwise that wrong decision would always be the reference for the magistrate and other authorities’ defence for their deficiencies. [sic]

14                  Mr Hu has also exhibited to his affidavit, again reflecting a commendable attention to the Court’s rules, a draft notice of appeal.  In that, he identifies three proposed grounds:

(1)        Failure by federal magistrate to identify and apply grounds of Section 5 ADJR Act 1977.

(2)        Federal magistrate had been misled by untrue instruction provided by respondents put the untrue instruction into consideration on respondent’s favour and made a wrong decision.

(3)        Federal magistrate failed to take a fair proceeding for applicant when the respondents default in the proceeding.  [sic]

15                  I should note that the proposed Respondents to the appeal and the Respondents to the extension of time application are a Ms Christine Giles and the Commonwealth Ombudsman.  For present purposes, there is no relevant distinction to be drawn between those two named Respondents. 

16                  One finds in the federal magistrate’s reasons for judgment a statement of the background to the case that came before the Federal Magistrates Court.  His Honour observed that Mr Hu felt aggrieved by a decision made by a Delegate of the Ombudsman exercising power under s 6 of the Ombudsman Act 1976 (Cth) (Ombudsman Act).  That decision was, or at least, its effect was, to cease or not to investigate a complaint made by Mr Hu in respect of a matter handled by the Migration Agents Registration Authority (MARA). 

17                  In turn, and as the federal magistrate’s reasons further disclose, underlying the complaint to the ombudsman in respect of the MARA was a complaint which Mr Hu had made in respect of a migration agent retained for the purpose of assisting him in relation to the securing of a visa under the Migration Act 1958 (Cth).  It suffices to note, for present purposes, that Mr Hu’s complaint in relation to the migration agent concerns wrong advice in part and also, it would seem, a concern about whether that migration agent, at the time he dealt with the agent, was indeed registered.  In that regard, Mr Hu sought to introduce in evidence today a collection of documents concerning the retainer of that particular migration agent, together with registration documents, both on the Australian Business Names Register, as well as on the Register of Migration Agents.  Whilst I can well understand the perception Mr Hu has as to the background relevance of the documents which comprise Exhibit “A” for Identification, it does not seem that they were introduced before the federal magistrate, although it is fair to say that there is reference to the data which one can glean from those documents. 

18                  In any event, even if they were in evidence before the federal magistrate, they are not directly relevant at the moment in relation to the question of whether or not an extension of time should be given.  Thus, what I propose to do is not to receive those documents as an exhibit.  It suffices, for present purposes, to note the general nature of the grievance that Mr Hu sought to bring forward in the Federal Magistrates Court.

19                  Part of that, of course, is a concern as to whether the migration agent concerned was frank with the MARA in relation to the action that authority took with respect to Mr Hu’s complaint.  By the time that Mr Hu’s grievance came before the Ombudsman, there had been an examination by the MARA of the complaint, albeit an examination with which Mr Hu was manifestly not satisfied. 

20                  In response to the complaint to the Ombudsman, the Ombudsman (or at least the delegate) observed as quoted by the federal magistrate at [9]:

Having carefully considered all of the information you have provided I do not believe that investigation of your complaint against the MARA will change the outcome of your complaint against your migration agent.  It’s my view that the decision that the MARA delegate, Mr Campbell, made was one that was reasonably open to make.  While his initial decision, and that it did not provide full reasons for his decision, Mr Campbell entered into considerable correspondence with you and continued to offer to provide further clarification throughout that process.  In relation to your request for a copy of the decision to be sent to you by mail while I agree this was a reasonable request I do not agree that the MARAs failure to do so invalidated its decision in any way.

21                  It appears that the foundation for the decision for the Ombudsman’s delegate is to be found in s 6(1) of the Ombudsman Act, which provides:

6(1)      Where a complaint has been made to the Ombudsman with respect to action taken by a Department or by a prescribed authority, the Ombudsman may, in his or her discretion, decide not to investigate the action or, if he or she has commenced to investigate the action, decide not to investigate the action further:

(a)        if the Ombudsman is satisfied that the complainant became aware of the action more than 12 months before the complaint was made to the Ombudsman; or

(b)        if, in the opinion of the Ombudsman:

(i)         the complaint is frivolous or vexatious or was not made in good faith;

(ii)        the complainant does not have a sufficient interest in the subject matter of the complaint; or

(iii)       an investigation, or further investigation, of the action is not warranted having regard to all the circumstances.

22                  The learned federal magistrate observed of that particular provision that it confers, “A broad discretion”: see para 25.  In so doing, the learned federal magistrate voiced an opinion in accord with that later given, in respect of that provision, by Collier J in Hu v Commonwealth Ombudsman (2009) FCA 1516.  It is apparent from oral submissions made by Mr Hu today that he is of the view that the Ombudsman ought, notwithstanding an opinion formed for the purposes of s 6(1), nonetheless to have conceived an obligation to investigate arising from s 6(1C) of the Ombudsman Act. 

23                  On analysis, it seems to me that s 6 posits a number of different bases, upon which the Ombudsman may or may not decide to investigate a particular complaint.  If it transpires that the Ombudsman, having considered one of the subsections in s 6, comes to a view that an investigation ought not to be conducted, it seems to me that it is not necessary, then, for the Ombudsman further to examine the question of an investigation.  Rather, what the Ombudsman must do is look to the circumstances of a particular case and to the provisions of s 6.  In some situations, those circumstances will commend attention to one particular provision, in others, perhaps more than one particular provision of that section.  If, though, one provision of s 6 does govern the matter and a particular view is formed as to whether or not to investigate, it is, in my opinion, nothing to the point, then, that another provision might also govern matters. 

24                  As it happens, in relation to s 6(1), I share the opinions expressed by the learned federal magistrate, as well as, for that matter, Collier J.  As to the nature of the provision, it does, indeed, confer a discretion.  It also has an additional governing criterion, which is of a kind described by Gummow J in Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at [130].  That is, that there is a jurisdictional fact which is dependent upon the formation of an opinion or a state of administrative satisfaction.  I refer, in this regard, to s 6(1)(a) and s 6(1)(b). 

25                  Here, there has been a formation by the Ombudsman, for reasons conveyed to Mr Hu, of an administrative value judgment as to whether or not to investigate his case.  It may be, indeed, it is more than may be, it is certainly the case that Mr Hu differs from the Ombudsman in relation to that value judgment.  However, as the learned federal magistrate plainly appreciated, having regard to his reasons for judgment, that difference is not, in itself, a basis upon which to grant a judicial review remedy.  Rather, this appears strongly to be a case where reasonable people might reasonably differ.  Particularly in circumstances which involve not only a discretion but the formation of an opinion or state of satisfaction, in respect of matters of public administration, where reasonable minds might reasonably differ as to courses open, and where a discretion has open ended qualities to it.  It is very difficult indeed, for reasons Gummow J canvassed in Eshetu 197 CLR 611 at [136] and [137], for judicial review remedies to be granted.

26                  When one looks to the reasons for judgment of the learned federal magistrate one finds a comprehensive survey of bases upon which it was put forward that the value judgment made by the Ombudsman ought to be overturned and the matter remitted to the Ombudsman for further consideration.  As the learned federal magistrate observed at para 36, the Ombudsman’s job in respect of Mr Campbell’s decision was not to decide whether Mr Campbell had reached the right conclusion rather as Ms Lye pointed out, the Ombudsman’s role was very different and was designed or focused upon ensuring that the relevant authority acted in a way commensurate with relevant standards.  It was not a merits review of Mr Campbell’s decision.  This inquiry before me is not a merits review of the Ombudsman’s decision.

27                  Thus, having regard to the discretion which is vested in me under the rules and to the principles governing the exercise of that discretion, this is a case where, in my opinion, there is no sufficient merit in the proposed appeal to warrant the granting of an extension.  It is on that basis rather than delay that I propose to refuse the application for an extension of time.  I put matters on that basis because of the importance, in my opinion, of justice being seen to be done.  Merely to refuse Mr Hu’s application on the basis of lapse of time alone in circumstances where that lapse of time included a period where there had been a lengthy lapse in the provision of revised reasons would not do justice.

28                  Further, I take note that Mr Hu did not rest on his rights as he saw them.  He sought to pursue other remedies. That may, with respect, have been wrong-headed and perhaps with the wisdom of hindsight, an earlier application for extension of time might have been lodged.  Nonetheless, I can see why there was an extension application only brought after he had pursued what ultimately proved to be unsuccessful other judicial challenges in respect of his underlying grievance. 

29                  For these reasons then, the order that I make is that the application for an extension be dismissed.

Associate:

Dated:         3 March 2010