Ajok v Minister for Immigration
[2010] FMCA 331
•5 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AJOK v MINISTER FOR IMMIGRATION | [2010] FMCA 331 |
| MIGRATION – ADMINISTRATIVE LAW – Complaints about lost immigration documents – review of freedom of information decisions – no arguable basis for judicial review found – no other general federal law jurisdictions properly invoked – application dismissed. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.10(2), 10(2)(b)(ii), 13 Freedom of Information Act 1982 (Cth), ss.54, 55 Privacy Act 1988 (Cth), ss.55A, 98 |
| Ajok v Mares [2010] NSWDC 62 McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 |
| Applicant: | ELIZABETH AJOK |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 275 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 5 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person (by telephone) |
| Counsel for the Respondent: | Ms D Watson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 275 of 2010
| ELIZABETH AJOK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This application was filed on 12 February 2010. In it Ms Ajok seeks relief in relation to actions of the Minister for Immigration and Citizenship and officers of his Department. Although Ms Ajok has concerns about the actions of other people, she has not made them respondents to the present court case.
Her central concerns relate to the documents which facilitated her travel to Australia in 2002. She was, in July 2002, given approval to travel and enter Australia with her four children on a humanitarian visa issued in response to an application made while she was in the Kakuma Refugee Camp in Africa. Her application was processed by the Australian High Commission in Nairobi. Following a favourable visa decision, the High Commission issued a single document entitled “Document for travel to Australia”, which covered Ms Ajok and her four children. They were identified on the document with their personal details and photographs. It was stamped at its bottom with the visa allowing entry to Australia of all five people. The document stated: “this document is good for single travel to Australia only”.
Ms Ajok was also given a single‑page document issued by the United Nations High Commissioner for Refugees. This also attached the personal details and photographs of Ms Ajok and her four children. It certified that they were registered as refugees. It referred to their travel for resettlement to Australia, and requested that assistance be given “in accordance with travel authorisation issued by the District Officer Kakuma”. That document also stated on its face that it had limited validity from 27 August to 7 September 2002.
Copies of these two travel documents are currently found on a file in the possession of the Department of Immigration, but searches for the originals have not revealed their presence in any of the records of the Department. The file shows that Ms Ajok and her four children did travel to Australia by air, and arrived in September 2002 in Sydney on a flight via Johannesburg. On the day after their arrival, they were flown to Wagga Wagga. Reference is made in the documents to their travel being assisted by an agency known as the “International Organisation for Migration (IOM)”, which is not an agency of any Australian government, but appears to be an international organisation engaged in assisting the travel of refugees.
Ms Ajok tells me that on arrival in Sydney, the originals of her travel documents were taken into their possession by one of the people who met her family, and that these people included at least one officer from the Department of Immigration, one officer from the IOM, and also other people in community organisations which were involved in assisting the family’s resettlement in Wagga Wagga. Her present efforts, of which this application is one example, are directed at discovering and recovering the original travel documents.
Unfortunately, it seems that resettlement of the family has not been an easy process. Their history since 2002 is only glimpsed in the documents before me, but these suggest that difficulties were encountered by Ms Ajok in Wagga Wagga, and then in Brisbane, and then in Sydney where she now lives. This has led to the intervention of child care agencies and other people, in circumstances which are not shown in the evidence.
Ms Ajok is now firmly convinced that the originals of the family’s travel documents are still in existence and are being misused. She thinks that they were misused by people who have been responsible for her losing care of her children, and that they are also being used fraudulently by other people in relation to immigration matters.
I accept that she has a firm belief about these matters, although she has not presented any evidence to give them substance. As I shall explain, it is not the task of the Court in the present proceedings to investigate the loss of the documents for itself. Her belief does, however, explain her efforts over very many years shown in the documents before me, to track down the originals of her travel documents.
Before filing her present application, Ms Ajok raised her broad concerns in proceedings commenced in the District Court of New South Wales. It was to that Court that she appears first to have presented a letter she wrote dated 22 July 2009, addressed “To the Federal Court of Australia”. It appears to raise concerns about the actions of two people who had been involved in her life in 2004 and 2007, and are unrelated to the Minister for Immigration and his Department. Her concerns were addressed by Gibson DCJ in a judgment published as Ajok v Mares [2010] NSWDC 62. Her letter is extracted in that judgment, and I shall not repeat its contents. Her Honour was not able to find a cause of action which could continue in that court.
Ms Ajok’s present application was supported by the same letter, however, it identifies the Minister of Immigration and his Department as its respondents. Ms Ajok used the form of application in relation to this Court’s general federal law jurisdictions, and completed it as follows:
Final orders ought by applicant/s (state precisely each order sought by way of final relief)
1.I need Immigration and IOM to return my children special documents passport and visas of the United Nation Geneva.
2.I need my children to be return in my care from DOCS.
3.I need Court to investigate privacy policy between DIAC, DOCS, Doctor Sarah Meras regarding the Reference No xxxxxxxxx‑xx in Commonwealth Bank.
Grounds of application (state briefly the grounds of the application)
1.My documents and my children’s documents were taken by Immigration and IOM Agency at the Sydney International Customs clearance section at the airport and not return me. After clearance. Passport (Green, blue, red) passport & visa.
2.Due to the above problems my children and I are suffering in Australia community.
Interlocutory, interim or procedural orders sought by applicant/s (complete only if interlocutory, interim or procedural orders are sought)
1.I needs children’s to return to me in my carer their mother.
2.I need all my children’s documents and my documents to be return to me for my children’s and the family.
3.I needs my children’s and family power to be return to me in my responsibility both financially and wealth of my children and my family at large.
In support of the application, Ms Ajok has presented numerous documents concerning her efforts to have her travel documents traced and her other concerns. These include correspondence relating to her applications to the Department of Immigration under the Freedom of Information Act 1982 (Cth). The Court has also been assisted by the solicitor for the Minister, by being presented with additional correspondence concerning Ms Ajok’s freedom of information requests.
The correspondence shows that requests for access to her files overseas and in Australia were first made in 2003, and that Ms Ajok was given access at that time to almost the whole of a file received from Nairobi. One page referring to the personal details of other people was withheld in part. Ms Ajok made further requests in 2005, and in 2008 she made a request for the amendment of her records.
She does not appear to have any current concerns about amendment of records, but on 6 November 2009 a solicitor on her behalf lodged a new request for access to documents. It identified the documents for which access was requested as follows:
Part B – Document(s) or information
11Please provide as much detail as you can to help us quickly identify your documents(s) or the information you seek.
R
My original documents(s), eg. Your police clearance certificate
MY ORIGINAL VISA AND THE VISAS ISSUED TO MY CHILDREN UNDER AUSTRALIA’S OFFSHORE HUMANITARIAN PROGRAM
R
Copies of my documents(s), eg. a copy of my visa application or a decision letter previously sent to me
ALL DEPARTMENTAL FILES IN RESPECT OF ANY VISA APPLICATION MADE BY ME AND MY CHILDREN
R
Other documents(s) or information
MY UN TRAVEL DOCUMENT AND THOSE ISSUED TO MY CHILDREN WHICH WERE TAKEN FROM ME WHEN I ARRIVED AT THE SYDNEY AIRPORT IN 2002 (10.09.2002) FROM KENYA
A decision was made on that request by the FOI case officer in the Department of Immigration office at Parramatta. In effect, she again released to Ms Ajok all the documents which had previously been located and released to her in 2003. In relation to the originals of her travel documents, the case officer said:
Document cannot be found
24ARequests may be refused if documents cannot be found or do not exist.
An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find the document; and
(b)the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
Section 24A of the FOI Act provides that access to documents may be refused if the documents cannot be found.
You have requested access to the original UN Travel document. Searches have been undertaken to find the document in question. These included:
-System searches of Integrated Client Services Environment (ICSE) for relevant record
-System searches of TRIM Record keeping for relevant record
-Checks with Airport Sydney
Sydney Airport was contacted on 10th November 2009 in relation to document in question. I received a reply from them on the same day that despite all the searches undertaken the documents or any file relating to the document in question could not be found.
Despite all the above searches the original or copy of the UN Travel document could not be found. I have concluded that the document to which you are seeking access is not in the possession of the department. Thus I am refusing the documents under Section 24A (b) (i) (the document cannot be found).
I am satisfied that all reasonable steps have been taken to locate your record and documents but that it cannot be located in the department at this time. On that basis I am refusing you access to the documents under Section 24A of the FOI Act.
Copies of the documents which were released to Ms Ajok are now all before the Court. Also before the Court is the last document on the Department’s file, which is a note of a conversation between the freedom of information officer and Ms Ajok on 23 December 2009. This refers to a “long conversation with the client”, in which the freedom of information officer said she explained her position in detail. Ms Ajok is noted as saying that “she understood and did not have further questions in regards to the FOI decision”.
The decision notification informed Ms Ajok and her solicitor that she had a right of internal review under s.54 of the Freedom of Information Act 1982 (Cth) (“the FOI Act”). It also referred to her rights under s.55, which gives a further right of review by the Administrative Appeals Tribunal after internal review. The time limits for exercising these rights are not mandatory, but can be extended for good reason. However, Ms Ajok has not pursued these avenues which would, in effect, allow her to point to possible areas of investigation for lost documents which have not been pursued. Rather, she has come to this Court and sought the orders which I have extracted above.
The Court does not have a general power to exercise powers under the Freedom of Information Act in relation to the investigation of the existence and release of documents. Indeed, neither the Federal Magistrates Court nor the Federal Court has any jurisdiction specific to the Freedom of Information Act. Its only relevant jurisdiction in relation to FOI decisions is its general judicial review jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”). This allows it to review the legality of decisions made by administrative officers of the Commonwealth of Australia, although it does not have a direct jurisdiction in relation to decisions of the Administrative Appeals Tribunal.
The AD(JR) jurisdiction is, however, generally only exercised after people have exhausted all their rights of administrative review of their concerns. The Court normally refuses to become involved in a matter where alternative rights of merits review by an independent administrative tribunal have not been pursued. It is given a specific discretion to take that factor into account (see s.10(2)(b)(ii) and compare McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 at [77]).
Another restraint on people applying to the Court for orders against administrative officers under the AD(JR) Act is that applications must be brought within 28 days after notification of the administrative decision (see s.13).
In the present case, Ms Ajok understandably has been unaware of the AD(JR) jurisdiction. It is also understandable that she was unaware of the time limits, and of the need for her first to pursue her rights of internal review in the Department of Immigration, and then merits review in the Administrative Appeals Tribunal.
I am prepared to read her application broadly as invoking the AD(JR) jurisdiction and inviting the Court to extend time, if that were necessary. However, on the material shown to me by Ms Ajok, I am not persuaded that I should extend time to exercise the AD(JR) jurisdiction in relation to any of the previous actions of the Department of Immigration or its offices under the FOI Act. This is because I am unable to identify any arguable legal or other error which could provide grounds for an order of the Court of the sort which Ms Ajok is seeking. Moreover, I consider on the material before me that the application would be doomed to failure, because of the likelihood that the Court would exercise its discretion under s.10(2).
I can identify no other jurisdiction in the Court’s general federal law jurisdictions which could provide any better or other remedy than the AD(JR) Act. I can identify in the material presented by Ms Ajok no proper basis for the Court ordering additional discovery by the Minister or his Department, nor for ordering the discovery of documents by any other person or agency in support of her present application.
Ms Ajok’s concerns that her original travel documents are held by the IOM or other people who became involved in her resettlement in Australia are not properly raised by the present case, and these persons have not been joined in nor served with her application. Moreover, it is difficult to see what cause of action or other rights against them could be pursued within this Court’s general federal law jurisdictions.
For all the above reasons, I do not consider that she has established any basis for making orders referrable to the first order she sought in her application.
Ms Ajok’s submissions to me concentrated on the missing travel documents, although she also explained why she thought she needed them to assist her to recover custody of her children. It is clear, in my opinion, that this Court in its general federal law jurisdictions has no powers directly to intervene in relation to matters concerning the care of her children. I therefore would decline to make any orders relating to the second order sought in her application.
The third order sought in the application refers unclearly to privacy policies and a Commonwealth Bank account. This was not explained by Ms Ajok, and I am unable to identify any jurisdiction in this Court which should now be exercised based on the materials she has presented.
Ms Ajok became aware of the office of the Federal Privacy Commissioner in 2004 and 2005, and she lodged a complaint with him in relation to an alleged loss of personal information from her file held by DIMIA. This was denied by the Department, and the Privacy Commissioner made a decision on 14 January 2005, which was explained to the Department:
In light of the efforts made by our Office to contact Ms Ajok and the steps taken by DIMIA in order to resolve the complaint, I have decided under section 41(2)(a) of the Act to cease investigation of this matter on the grounds that in my view, DIMIA has adequately dealt with the matter. My file in the matter is now closed.
There is no evidence that Ms Ajok subsequently agitated any claim relating to the Privacy Act 1988 (Cth) prior to the present proceeding. It is also unclear whether she now seeks to pursue the complaint she made in 2004.
However, for completeness, I note that this Court has three jurisdictions relating to rights under the Privacy Act. It has a jurisdiction under s.55A of the Privacy Act to enforce a favourable determination of the Privacy Commissioner, but in the present case there is no evidence of any such determination. The Court also has its general AD(JR) jurisdiction to conduct a judicial review of administrative decisions made by the Privacy Commissioner, including a decision of the type made in 2005. However, exercise of that right is subject to the same time limit which I have referred to above, and the need to identify error affecting the Commissioner’s decision. Considering all of the material before me, I am entirely unpersuaded that any basis for exercising AD(JR) jurisdiction is shown. Nor can I find any basis for the exercise of the Court’s separate jurisdiction under s.98 of the Privacy Act to issue injunctions in relation to conduct which might constitute a contravention of the Act.
For the above reasons, I have not been able to find power in the Court to make orders addressing any of the three matters which appear to be raised in Ms Ajok’s application. Nor have I found any basis upon which to make orders addressing any other concern touched upon by Ms Ajok in the documents before me, in so far as they relate to the Minister for Immigration and his Department.
I must therefore dismiss the application.
The Minister has not sought an order for costs.
Before completing this judgment, I wish to record my thanks for the assistance given to the Court by Ms Watson on behalf of the Minister, and by the excellent interpreter who has assisted the Court this morning for several hours by telephone from Perth. The Court has endeavoured to accommodate in the fullest fashion the impediments faced by Ms Ajok. I do, however, share the concern expressed by Gibson DCJ in her judgment, at the public resources which have been required to be given to a proceeding lacking any legal basis. As in the District Court, this has included obtaining an interpreter to meet a special request of the litigant, and much administrative time was also spent endeavouring to accommodate a litigant who declines to use staircases or lifts. Unfortunately, no suitable facility was available to the Court in Sydney, and the hearings have therefore been conducted by telephone.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 19 May 2010
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