Hu v Commonwealth Ombudsman - [2009] FMCA 785

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU v COMMONWEALTH OMBUDSMAN

[2009] FMCA 785

ADMINISTRATIVE LAW – Application for orders Court not empowered to make – no grounds made out for review.

Ombudsman Act1976, s.6
Administrative Decisions (Judicial Review) Act 1975, ss.5, 16

Applicant:

YUAN YUAN HU

Respondent:

COMMONWEALTH OMBUDSMAN

File Number:

BRG311 of 2009

Judgment of:

Jarrett FM

Hearing date:

15 July 2009

Date of Last Submission:

15 July 2009

Delivered at:

Brisbane

Delivered on:

14 August 2009

REPRESENTATION

The Applicant appears in person:

Counsel for the Respondent:

Ms Lye

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application filed on 8 May, 2009 and the amended application filed on 22 May, 2009 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG311 of 2009

YUAN YUAN HU

Applicant

And

COMMONWEALTH OMBUDSMAN

Respondent

REASONS FOR JUDGMENT

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 Act1976, 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.
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.
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.
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.
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:
Secondly, I have inquire is about how to protect my family privacy. I stronger…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hu v Commonwealth Ombudsman

Details

AGLC: Hu v Commonwealth Ombudsman [2009] FMCA 785
Case: [2009] FMCA 785
Decision Date: 14 August 2009

CaseChat Overview and Summary

The matter before the court involved a dispute between the applicant, Hu, and the Commonwealth Ombudsman. Hu sought judicial review of the Ombudsman’s decision to not investigate his complaint about the Commonwealth. The case was heard in the Federal Court of Australia. The central issue before the court was whether the Ombudsman’s decision to decline the complaint was legally valid and whether the court should order the Ombudsman to investigate Hu's complaint. Specifically, the court needed to consider whether the Ombudsman had the authority to refuse the complaint and whether there were any procedural or jurisdictional errors in his decision.

The court held that the Ombudsman had the discretion to decide whether to investigate a complaint and that there was no evidence of procedural or jurisdictional errors in his decision. The court found that the Ombudsman’s decision was based on a proper consideration of the facts and the relevant legislative framework. It was determined that the Ombudsman had correctly exercised his discretion and that there was no basis for the court to intervene. Therefore, the court dismissed Hu's application for judicial review.

Consequently, the court ordered that the application filed on 8 May 2009 and the amended application filed on 22 May 2009 be dismissed. This decision affirmed the Ombudsman's authority to decline complaints without any procedural or jurisdictional flaws. The court concluded that there were no grounds to overturn the Ombudsman’s decision and upheld his right to determine which complaints warrant investigation.

Orders

Orders of the court

That the application filed on 8 May, 2009 and the amended application filed on 22 May, 2009 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.