FEDERAL COURT OF AUSTRALIA
Hu v Commonwealth Ombudsman [2009] FCA 1516
ADMINISTRATIVE LAW – Commonwealth Ombudsman decided not to investigate appellant’s complaint about Migration Agent Registration Authority (MARA) – Federal Magistrate dismissed appellant’s application for review of Ombudsman’s decision – appellant believed migration agent had sent a forged contract to MARA – s 6 Ombudsman’s Act 1976 – Ombudsman found no complaint made by appellant to MARA concerning legitimacy of contract and no decision made by MARA on this issue – whether discretion of Ombudsman is fettered – contents of contract did not impact on appellant’s earlier complaint about migration agent – whether the Ombudsman denied the appellant natural justice – s 5 and s 6 Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR Act) – whether order for review available under s 16 ADJR Act – whether Federal Magistrate erred in failing to order default judgment against respondent under r 4.05 and r 13.03A Federal Magistrate Court Rules 2001 – whether discovery should have been granted by Federal Magistrate pursuant to s 45 Federal Magistrates Act 1999 (Cth) – whether Federal Magistrate gave adequate reasons – s 78B Judiciary Act 1903 (Cth) notices – whether Constitutional issues arose
Held: appeal dismissed – no constitutional issues arose
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Federal Magistrates Act 1999 (Cth) s 45
Judiciary Act 1903 (Cth) s 78B
Ombudsman Act 1976 (Cth) s 6(1)
Federal Court Rules O 51 r 2
Federal Magistrates Court Rules 2001 (Cth) rr 4.05, 13.03A, 13.03B
Barristers Rules of Queensland 2007Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 cited
Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 cited
Buck v Bavone (1976) 135 CLR 110 cited
House v R (1936) 55 CLR 499 cited
NAQR & Anor (No. 1) v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 271 cited
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 cited
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 citedYUAN YUAN HU v COMMONWEALTH OMBUDSMAN
QUD 201 of 2009COLLIER J
17 DECEMBER 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 201 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: YUAN YUAN HU
AppellantAND: COMMONWEALTH OMBUDSMAN
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
17 DECEMBER 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs to be taxed if not otherwise 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 eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 201 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: YUAN YUAN HU
AppellantAND: COMMONWEALTH OMBUDSMAN
Respondent
JUDGE:
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Details
- AGLC
- Hu v Commonwealth Ombudsman [2009] FCA 1516
- Case
- [2009] FCA 1516
- Decision Date
CaseChat Overview and Summary
Mr Hu appealed against a decision of the Federal Magistrate dismissing his application for judicial review of a decision by the Commonwealth Ombudsman not to investigate his complaint against an officer of the Migration Agents' Registration Authority. The Federal Court considered whether the Federal Magistrate erred in dismissing Mr Hu's application. The primary legal issue was whether the Federal Magistrate erred in dismissing Mr Hu's application for judicial review of the Ombudsman's decision. The court considered various grounds of error advanced by Mr Hu, including that the Ombudsman failed to consider relevant matters, made an error of law, and acted contrary to natural justice. The court noted that Mr Hu's complaint was not about the Ombudsman's decision not to investigate his complaint against the officer but rather about the process leading to that decision.
The court found that the Ombudsman had properly exercised his discretion in deciding not to investigate Mr Hu's complaint. The Ombudsman had considered Mr Hu's submissions and sought further information to understand the nature of his complaint. The court held that the Ombudsman's decision was not an improper exercise of power, did not involve an error of law, and was not otherwise contrary to law. The court also found that the Ombudsman had applied the rules of natural justice and considered relevant matters. The court held that the Federal Magistrate did not err in dismissing Mr Hu's application for judicial review.
The appeal was dismissed, and Mr Hu was ordered to pay the Commonwealth Ombudsman's costs. The court found that the Ombudsman had properly exercised his discretion in deciding not to investigate Mr Hu's complaint and that the Federal Magistrate did not err in dismissing Mr Hu's application for judicial review. The court held that the Ombudsman's decision was not an improper exercise of power, did not involve an error of law, and was not otherwise contrary to law. The court also found that the Ombudsman had applied the rules of natural justice and considered relevant matters.
The court found that the Ombudsman had properly exercised his discretion in deciding not to investigate Mr Hu's complaint. The Ombudsman had considered Mr Hu's submissions and sought further information to understand the nature of his complaint. The court held that the Ombudsman's decision was not an improper exercise of power, did not involve an error of law, and was not otherwise contrary to law. The court also found that the Ombudsman had applied the rules of natural justice and considered relevant matters. The court held that the Federal Magistrate did not err in dismissing Mr Hu's application for judicial review.
The appeal was dismissed, and Mr Hu was ordered to pay the Commonwealth Ombudsman's costs. The court found that the Ombudsman had properly exercised his discretion in deciding not to investigate Mr Hu's complaint and that the Federal Magistrate did not err in dismissing Mr Hu's application for judicial review. The court held that the Ombudsman's decision was not an improper exercise of power, did not involve an error of law, and was not otherwise contrary to law. The court also found that the Ombudsman had applied the rules of natural justice and considered relevant matters.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs to be taxed if not otherwise agreed.
Note:
Background
Background to the litigation
Further, by an application filed 17 August 2009 Mr Hu gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) that the appeal raised an issue under the Constitution of the Commonwealth or involving its interpretation. Mr Hu’s affidavit filed in support of this application asserts, in summary, that various decisions made by the learned Federal Magistrate contravened the doctrine of separation of powers enshrined in the Constitution. Similarly, Mr Hu gave another notice pursuant to s 78B of the Judiciary Act 1903 (Cth) on 1 October 2009 alleging various constitutional issues arising from a directions hearing on 22 September 2009 before me. At the hearing of the appeal on 1 December 2009 Mr Hu produced a letter from the solicitor for the Commonwealth Attorney-General stating that the Commonwealth Attorney-General did not wish to intervene in the proceedings before the Court.Background The background facts to these proceedings are helpfully summarised in paras [1]-[12] and [15]-[17] of the judgment of Jarrett FM. I do not understand this summary to be disputed. In those paragraphs his Honour observed as follows:1. 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 Act 1976, 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.2. 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 1975.3. 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. 4. 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.5. 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:o 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.o 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).6. On what appears to be 29 January, 2009, Ms Moser replied to Mr Hu’s email of 22 January. She said:o 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.o 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.o 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.o In relation to your concerns about privacy, MARA will not release personal information about you unless it is required to do so by law.7. 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, 2007.8. 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 copyof the original(signed)JOEY SIEN POONG CHUNGThe Justice of The Peace 180711Date: 04 June 20089. 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.10. 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.11. On 5 February, 2009 Mr Hu sent an email to Ms Moser in the following terms:o I have received the registered post mail today. Thank you very much for your help.o After I checked the documents inside, I did not find the email from documents which I put it in the attachment name unsigned email.o 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.o Best Regards,(faithfully reproduced).12. On 6 February, 2009 Ms Moser responded to Mr Hu:o 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.o Signed –Vee* Moser….15. 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 Mr 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:o So that we may better understand your complaint, could you please answer the following queries:o 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?o 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?o 3. Did you enter into any other contract with this Migration Agent? If so, could you please provide us with a copy of it?o 4. What impact have these documents had on your complaint to the MARA?o 5. If the documents are fake, what information presented in those documents do you believe has been to your detriment?o 6. What outcome are you hoping to achieve through this complaint?o 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.16. 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.17. 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
COLLIER J
Section 5 of the ADJR Act provides as follows:(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c) that the person who purported to make the decision did not have jurisdiction to make the decision;(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;(g) that the decision was induced or affected by fraud;(h) that there was no evidence or other material to justify the making of the decision;(j) that the decision was otherwise contrary to law.(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a) taking an irrelevant consideration into account in the exercise of a power;(b) failing to take a relevant consideration into account in the exercise of a power;(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;(d) an exercise of a discretionary power in bad faith;(e) an exercise of a personal discretionary power at the direction or behest of another person;(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and(j) any other exercise of a power in a way that constitutes abuse of the power.(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. The first ground of appeal was not particularised. In his written submissions however Mr Hu made (in summary) the following contentions:·The Federal Magistrate should have made an order of review pursuant to s 5(1)(j) on the basis that the decision of the Ombudsman was otherwise contrary to law.·The Federal Magistrate should have made an order of review pursuant to s 5(1)(b),(e) and (g) on the basis that, inter alia, MARA and the Ombudsman did not identify the fraud in respect of forged documents forwarded to Mr Hu by MARA·The Federal Magistrate should have made an order of review pursuant to s 5(1)(a) on the basis that the Ombudsman failed to take into consideration issues including that the MARA decision did not comply with MARA’s service charter, and therefore that the Ombudsman failed to apply the rules of natural justice.·The Federal Magistrate should have made an order of review pursuant to s 5(1)(h) on the basis that the material filed demonstrated that there was no material or evidence to justify the Ombudsman’s decision.·The Federal Magistrate should have made an order of review pursuant to s 5(1)(a),(b),(e),(g) and (h) (and, according to Mr Hu’s submissions, (I), although no such paragraph exists).
Ratio Decidendi
Legal Principle Established
Established by: COLLIER J
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