Emanetoglu, Ilyas v Secretary, Department of Immigration and Ethnic Affairs
[1996] FCA 800
•9 Aug 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 452 of 1995
)
GENERAL DIVISION )
BETWEEN:ILYAS EMANETOGLU
Applicant
AND:SECRETARY, DEPARTMENT OF IMMIGRATION & ETHNIC AFFAIRS
First Respondent
B.A. BARBOUR, Senior Member constituting the ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 9 AUGUST 1996
FIRST REASONS FOR JUDGMENT OF 9 AUGUST 1996
On 26 June 1995 the applicant, Mr Ilyas Emanetoglu, applied to the Court in its original jurisdiction for a review of a decision of the Administrative Appeals Tribunal concerning access requested by Mr Emanetoglu in respect of certain files relating to himself.
Put shortly, it may be said that Mr Barbour, the member of the Administrative Appeals Tribunal before whom the matter was heard, formed the view that there were two files and two files only of papers relating to of Mr Emanetoglu. Mr Barbour, accordingly, ordered the Department of Immigration and Ethnic Affairs to grant to Mr Emanetoglu access to files N67/19072 and 68/373, which files had been provided to him during the hearing of the application. It is from this
decision that Mr Emanetoglu seeks to appeal, although in form the appeal purports to be an application for review under the Administrative Decisions (Judicial Review) Act (1977) (Cth).
The Department of Immigration and Ethnic Affairs objected to the Court's jurisdiction. It says that Mr Emanetoglu was not a person aggrieved because, in fact, he had been successful before Mr Barbour. However, it is clear that the real gravamen of Mr Emanetoglu's case is not that he is dissatisfied with the order that he be provided with the two files, but rather he believes that there are other files in existence which should have been handed over to him, but which have not been.
The matter first came before the Court on 12 July 1995 when it was stood over until 9 August 1995. On this next day, at Mr Emanetoglu's request, it was stood over until 23 August 1995 with an order that he provide medical evidence if he wished to maintain the view that the hearing should be adjourned until 1996. In response, Mr Emanetoglu provided a photocopy of material from the Department of Social Security indicating that he had presented to them as having paranoid schizophrenia. On 23 August 1995 I stood over the matter until 26 July 1996. On that occasion I said that if any further adjournment was to be sought medical evidence had to be provided of Mr Emanetoglu's inability on health grounds to argue his case.
The matter was re-listed on 26 July 1996. In the meantime Mr Emanetoglu had written to the Court saying he would be unable to attend court on 26 July as he was going overseas and wanted to go to Turkey to receive medical attention. The matter finally came before me again on 26 July when Mr Emanetoglu was unrepresented and I set the matter down for hearing this morning so that all matters in dispute between the parties might be determined. This morning Mr Emanetoglu has made a further application for an adjournment. He has handed me a letter from Legal Aid of New South Wales confirming that an appointment had been made for him to see a solicitor of that body on 13 August 1996.
The material, as well, contains a certificate from a Dr Stevenson which says no more than that Mr Emanetoglu had been placed on a pension in 1995 for a major psychiatric disorder. The certificate is dated 20 June 1995. Rather more recent is a certificate from a Dr Capper, dated 7 August 1996, who says in a pro forma document that he has examined Mr Emanetoglu who is suffering from chronic schizophrenia and who would be "unfit for duty up to an including 8/8. - 15/8". Also provided is an English translation of a Turkish report dated 19 June 1996 dealing with Mr Emanetoglu's medical condition as determined by the Turkish authorities, he having, apparently, been admitted on 7 May 1986 and discharged on 24 May 1996 to and from respectively a hospital in Turkey for a psychotic disorder.
In a letter accompanying that material Mr Emanetoglu says that he is not in a position to defend his case and that he needs a lawyer. He says he has lost his speech and his "systems are destroyed". He says he unable to continue in the Court, that he is a foreigner and has been wronged and applies for extra time to be "granted a lawyer".
I should mention that, at an earlier stage in the proceedings, legal aid had been discussed and it had been suggested that Mr Emanetoglu had been rejected.
I am conscious of the difficulty which Mr Emanetoglu has in arguing the case without a lawyer. Absent an interpreter at least, he can do no more than pass written notes across to the bench putting his point of view. There is, however, nothing in the medical reports that suggests that there is any great likelihood that his medical condition will change in the near future. Indeed it may very well be that to have the present case hanging over his head could be more deleterious to his health than to have it decided. This is particularly so as it is difficult to see how any ground of appeal lies from the decision which was in Mr Emanetoglu's favour.
I take into account the fact that the proceedings have been instituted something in excess of a year ago; there have been a number of directions hearings; that there is a
cost to the Department of Immigration and Ethnic Affairs in the matter being perpetually adjourned; and in circumstances where there is no real prospect on the face of it of a hearing taking place in the conceivable future.
Although I am conscious of the difficulty of a litigant appearing in person and particularly in circumstances where that litigant is or may be suffering from a mental illness, I think the present is a case where it is preferable that the matter be determined than that it continue to be adjourned from occasion to occasion.
I would accordingly refuse the adjournment and proceed to hear the substantive case.
I certify that this and the
preceding four (4) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.
Associate:
Date:
The applicant appeared in person.
Solicitors for Respondent: G Peek of the Australian Government Solicitors
Date of Hearing: 9 August 1996
Date Judgment Delivered: 9 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 452 of 1995
)
GENERAL DIVISION )
BETWEEN:ILYAS EMANETOGLU
Applicant
AND:SECRETARY, DEPARTMENT OF IMMIGRATION & ETHNIC AFFAIRS
First Respondent
B.A. BARBOUR, Senior Member constituting the ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 9 AUGUST 1996
SECOND REASONS FOR JUDGMENT OF 9 AUGUST 1996
The applicant in these proceedings seeks a review of a decision of the Administrative Appeals Tribunal constituted by Mr Barbour, in respect of access to various documents which he had sought. The application for review goes back to an application lodged by Mr Emanetoglu under the Freedom of Information Act 1982 (Cth) that he be given access to "documentation re proof of permanent residency in Australia".
On 1 September 1994, the public access unit of the Department of Immigration and Ethnic Affairs wrote to Mr Emanetoglu regretting that checks of its old records had failed to turn up any documents of the kind sought. In the circumstances, Mr Emanetoglu's application for access to documents was refused pursuant to s24A(b)(i) of the Freedom of Information Act, that is to say, on the grounds that the documents either could not be found or did not exist.
Mr Emanetoglu then sought a review of that decision from the Administrative Appeals Tribunal. Mr Emanetoglu's application to the Tribunal was determined by Mr Barbour on 30 May 1995 and subsequently reduced to writing. It indicates that, subsequent to the decision not to grant access on the basis that no documents could be located, two files numbered N67/19072 and 68/373 had been located. Accordingly, the Tribunal set aside the earlier decision and formally made a decision that the two files be provided to Mr Emanetoglu without exemptions.
The Tribunal said:
"As I have noted during the course of the proceedings, it is regrettable that it has taken that amount of time to come up with these files and to provide them to Mr Emanetoglu. I am satisfied, given the explanation of the procedures adopted by the Department that it would appear to the best of my knowledge and what has been provided to me today that there are no other documents that are able to meet the request and should other documents arise in the future, Mr Bradfield has indicated they will be reviewed and provided to Mr Emanetoglu.
The applicant has not indicated to me whether he is satisfied with the outcome of his request, given that these two files have now been provided to him, nor has he indicated to me whether he is unsatisfied with the contents of those. On review of those documents, they appear to be
complete copies of the two files in question and I am satisfied that all folios have been copied and provided to the applicant. In the circumstances, my decision will be to, as I have said, set aside the initial decision under review and substitute it with a decision to allow access to the two files in question and to note that access has been granted."
Mr Emanetoglu then applied to this Court for a review of the decision of the Administrative Appeals Tribunal. In form at least, it would seem that the application was made under the Administrative Decisions (Judicial Review) Act (date) (Cth), although, as Mr Emanetoglu was acting for himself, I do not think that such a narrow view should be taken of his application. The grounds he set out in the application are as follows:
That the documents included in the file produced by the Department of Immigration to the Administrative Appeals Tribunal were not complete, that certain documents were missing.
The file number was cited differently, to wit, N67/9072 and N67-19072.
That names cited were differently, to wit, Elias, Ilias, and Ilyas Emanetoglu.
There is a fourth ground which I do not understand which is in the following form:
"4.When access was initially sought to gather information under the Freedom of Information Act a letter was received to state that the relevant information was not found. After an Appeal had been lodged to the Department for a Review the initial decision was upheld based on Section 24A9b)(i) [sic] of the Freedom of Information Act 1982. Some further documentation however, was produced at the Tribunal even though they were unable to be located at the Department and Australian Archives previously...".
Whether that may be seen as an appeal under the Administrative Appeals Tribunal Act (1975) (Cth) where it would be an appeal on and limited to a question of law, or whether the matter is seen as an application for review under the Administrative Decisions (Judicial Review) Act where only one of the nominated grounds would be available, each of which involve questions of law, Mr Emanetoglu will be unable to succeed in this Court unless able to show that there was some error of law committed by the Tribunal. It may be as well that Mr Emanetoglu is not in any relevant sense a person aggrieved having been successful before the Tribunal, but that is not a matter that I need be detained by.
The real gravemen of Mr Emanetoglu's complaints seems to be that, in his opinion there ought to have been other documents which have not been produced. The name and numbering problems to which the appeal relates are immaterial and do not of themselves constitute any error of law. No
doubt if Mr Emanetoglu were able to show or had been able to show the Tribunal that other documents existed, orders would have been made by the Tribunal for those other documents to be produced to him. It may well be that Mr Emanetoglu has other avenues available to him, for example, he could ask to have the matter investigated by the Ombudsman if he suspected that there were documents not produced. He might indeed be able to go back to the Tribunal if there were evidence of that kind, but what he cannot do is agitate in this Court, in the guise of an appeal or review, the issue of whether there are other materials in a file in his name held by the Department. The Tribunal has decided that no such other material exists and, short of a case where that finding could not have been made upon the evidence before it, that finding is binding upon me and it is not open for me to investigate its correctness.
It follows that the application for review should be dismissed. I order the applicant to pay the respondent's costs of the application including reserved costs.
I certify that this and the
preceding four (4) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.
Associate:
Date:
The applicant appeared in person.
Solicitors for Respondent: G Peek of the Australian Government Solicitors
Date of Hearing: 9 August 1996
Date Judgment Delivered: 9 August 1996
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