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 doubt about Chris Campbell leak my privacy for illegal purpose. I hope to temporarily freeze my authority to MARA about my privacy.
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).
On what appears to be 29 January, 2009, Ms Moser replied to Mr Hu’s email of 22 January. She said:
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.
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.
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.
In relation to your concerns about privacy, MARA will not release personal information about you unless it is required to do so by law.
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.
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
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.
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.
On 5 February, 2009 Mr Hu sent an email to Ms Moser in the following terms:
I have received the registered post mail today. Thank you very much for your help.
After I checked the documents inside, I did not find the email from documents which I put it in the attachment name unsigned email.
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.
Best Regards,
(faithfully reproduced).
On 6 February, 2009 Ms Moser responded to Mr Hu:
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.
Signed –Vee* Moser
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.
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.
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 Me 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:
So that we may better understand your complaint, could you please answer the following queries:
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?
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?
3. Did you enter into any other contract with this Migration Agent? If so, could you please provide us with a copy of it?
4. What impact have these documents had on your complaint to the MARA?
5. If the documents are fake, what information presented in those documents do you believe has been to your detriment?
6. What outcome are you hoping to achieve through this complaint?
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.
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.
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.

Consideration

Section 5 of the Administrative Decisions Judicial Review Act sets out the grounds upon which a person may apply to the Court for the making of an order to review. Mr Hu specifically relied upon ss.5(1)(a),(b),(d),(e),(h) and (j) of the Act. He also relied upon ss.6(1)(b) of the Act.
The relief that the Court may grant pursuant to the ADJR Act is set out in s.16 thereof and is relatively limited. For the purposes of this application (seeking relief in respect of a decision) s.16 relevantly provides:
16 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.
The orders Mr Hu seeks are extensive. They are:
1. Quash the Commonwealth Ombudsman's decision, which they have decided not to investigate my complaint against Mara.
2. Order Commonwealth Ombudsman's decision maker to investigate my complaint against Mara.
3. Quash the Mara's decision on my complaint against the agent 0316914, which decided to take no further action.
4. Order Mara's decision makers to review their decision on my complaint against the agent 0316914.
5. Refrain Mara to make decision which decided to take no further action on my complaint against the agent 0316914
6. Order Commonwealth Ombudsman's decision maker to offer me evidence and materials to support his 5 reasons in the decision.
7. Order Commonwealth Ombudsman's decision maker to offer me evidence and materials to support using power from Ombudsman Act 1976 section6 (1)(b)(iii).
8. Order Mara to offer me employment status of Mr Brad Abbott. Especially the status on 29 January 2009.
9. Declare my rights to get the collecting evidence and material from Commonwealth Ombudsman in my complaint 2009-400107
10. Declare my rights to get all the evidence and materials supplied by the agent 0316914 from Mara in my complaint against the agent.
11. Order Mara's decision makers to offer me all the evidence and materials supplied by the agent with filing date and Mara's investigation officer's name.
12. Declare my rights to get all the evidence and materials supplied by DIAC for my complaint against the agent 0316914 from Mara.
13. Order Mara's decision makers to offer me all the evidence and materials supplied by DIAC for my complaint against the agent 0316914 from Mara with filing date and Mara's investigation officer's name
14. Order Mara's decision maker to offer me copies of all the evidence and materials I supplied, with filing date and Mara's investigation officer's name.
15. Order Commonwealth Ombudsman's decision maker to offer me his accessing standards for his decision.
16. Order Mara's decision makers to offer me their investigation standards for their decision.
17. Order Mara's decision makers to offer me their understanding of the three pages documents ('the contract').
18. Order Mara's decision makers to offer me their considerations taken into account for the three pages documents ('the contract').
19. Order Commonwealth Ombudsman's decision maker to offer me his understanding of the three pages documents ('the contract').
20. Order Commonwealth Ombudsman's decision maker to offer me his considerations taken into account for the three pages documents ('the contract').
21. Declare my rights to review the Commonwealth Ombudsman's decision at Federal Magistrates Court of Australian.
22. Declare my right to deal with Commonwealth Ombudsman when they investigate my complaint against Mara.
23. Declare my right to deal with Mara when they review their decision about my complaint against the agent 0316914
24. Declare my right to get proper reasons from Ms Moser for her decision on my complaint against the agent 0316914.
25. Declare my right to get proper reasons from Mr Campbell for his decision on my complaint against the agent 0316914.
26. Declare my right to get proper reasons from Mr Abbott for his decision on my complaint against the agent 0316914.
27. Declare my right to get all the evidence and materials at least 14 dates from decision maker or makers before the decision maker or makers make the decision to me again.
28. Order Commonwealth Ombudsman directions as the Court thinks fit
29. Order Mara directions as the Court thinks fit.
30. Declare my rights as the Court thinks fit.
Orders 1 and 2 seek relief that might be granted in these proceedings.
It will be immediately apparent that the Court has no jurisdiction to grant the relief sought in orders 3, 4, 5, 8, 10, 11, 12, 13, 14, 16, 17, 18, 24 and 29. Those orders relate to the decision made by the Authority in respect of Mr Hu’s complaint against the migration agent. The Authority is not a party to the present application. Moreover, order 24 seems to seek reasons for Ms Moser’s “decision’, but as I have pointed out above, in my view she has made no decision in this matter.
The relief sought in orders 23, 25 and 26 is arguably available in these proceedings, but the Authority would, in my view, be a necessary party to proceedings for that relief as it impacts upon the Authority’s practices and processes. I should not make the declarations sought in the absence of the Authority from these proceedings.
The relief sought in orders 6, 7, 9, 15, 19 and 20 appears to me to be seeking the delivery of reasons for decision or further and better reasons for the decision of the Ombudsman not to investigate Mr Hu’s complaint. Section 13 of the ADJR Act provides for the delivery of a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, at the request of a person entitled to apply for relief under s.5 of the ADJR Act. Section 13(7) provides that the Court might order a person who has provided such a statement to provide an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.
Orders 21, 22, 28 and 29 add nothing further to the relief otherwise sought by Mr Hu in the application.

Further and Better Reasons

Mr Pezzanite gave to Mr Hu a statement of his reasons for decision on 27 April, 2009. They are relatively brief, but easily understood. The reasons point out that the decision maker needed to take into account a range of matters, but in particular the complainant’s interest in the complaint, whether there is a reasonable course of investigation available and the potential outcomes an investigation might produce.
The reasons go on to point out five matters that the decision maker considered important in reaching the conclusion that the complaint did not warrant investigation. 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 orf retainer.
Subsequent to Mr Pezzanite’s decision, there was an exchange of emails between Mr Hu and Mr Paul Bluck from the respondent’s office. Mr Bluck apparently conducted an internal review of

Mr Pezzanite’s decision. I will not set out the course of that email correspondence, but it is clear that Mr Bluck went to considerable lengths to understand and explain Mr Pezzanite’s decision to Mr Hu.
In my view there is no case made out for orders that would require the delivery of an additional statement or statements containing further and better particulars in relation to the matter decided by Mr Pezzanite including his findings, the evidence or other material relied upon by him in reaching his conclusion.

Quashing the decision

Ms Lye, who appeared for the respondent, again pointed out that the relevant power exercised by the Ombudsman in this case has its genesis in s.6 of the Ombudsman Act1976. That section provides that the Ombudsman has a very broad discretion as to whether or not to investigate or to cease investigating a particular complaint. I accept that it is a broad discretion. Section 6 is in the following terms:
6 Discretion not to investigate certain complaints
(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.

There is nothing that I was taken to in the Ombudsman Act that suggests that the discretion is fettered in any way. As I pointed out in Hu v Giles the Ombudsman is not a judicial body and so the discretion need not be exercised judicially, although one would expect that there might well be some limits on the exercise of that discretion. The limits, I suspect, in part at least may be found in s.5(1) of the ADJR Act.
Mr Hu complains that he was not given an opportunity to be heard, but the record does not bear that out. Mr Hu was afforded ample opportunity to explain his complaint to Mr Pezzanite and he took those opportunities.
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.
As I pointed out above, Ms Moser, the subject of Mr Hu’s complaint, does not appear to have made any decision in this matter. The relevant decision was taken by either Mr Campbell or Mr Abbott in mid 2008. The only role played by Ms Moser was to pass on information to Mr Hu.

Default Orders

Mr Hu also presses me to make default orders against the respondent because the response material was not filed in accordance with certain directions that had been made in this matter.
There is no contest that the directions were not complied with but the non-compliance was, in my view, insignificant. No prejudice was occasioned to Mr Hu by the default and the application has been fully argued. I decline to enter default judgment against the respondent.
The application must be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: S. Haysom

Date: 14 August 2009