Hu v Minister for Immigration - [2010] FMCA 30

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 30

ADMINISTRATIVE LAW – Application to review decision not to further investigate complaint made by the applicant to the respondent – whether the decision was a decision to which the Act applied – whether the decision was made under an enactment – whether the applicant was a person aggrieved by the decision – application summarily dismissed.

Migration Act 1958 (Cth), ss.275, 315, 316, 317
Administrative Decisions (Judicial Review) Act1977, ss.3, 5
Federal Magistrates Act1999, s.17A
Federal Magistrates Court Rules 2001, r.13.10

McGowan v Migration Agents Registration Authority (2003) 129 FCR 118
Bond v Australian Broadcasting Tribunal (1990) 170 CLT 321
Ninatoca Pty Ltd & Anor v Kovari Professional Pty Ltd & Ors (No.2) [2008] FMCA 947
Griffith University v Tang (2005) 221 CLR 99
Australian Conservation Foundation v Commonwealth (1980)146 CLR 493
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64

Applicant:

YUAN YUAN HU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY

File Number:

BRG 531 of 2009

Judgment of:

Wilson FM

Hearing date:

20 November 2009

Date of Last Submission:

20 November 2009

Delivered at:

Brisbane

Delivered on:

22 January 2010

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

In person

Counsel for the Respondents:

Ms Kidson

Solicitors for the Respondents:

Clayton Utz

ORDERS

The proceeding against the first named respondent be struck out, and the first respondent be removed as a party to the proceedings.
The name of the second named respondent be amended to “Migration Agents Registration Authority” and the proceedings be continued against that respondent.
The application filed 13 August 2009 be dismissed.
The applicant pay the respondents’ costs of and incidental to the proceedings, to be taxed, save and except for those costs incurred by the respondents on 4 September 2009 and 2 October 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 531 of 2009

YUAN YUAN HU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is aggrieved by the actions of a migration agent who assisted him in connection with his application for a skilled-independent overseas student (subclass 880) visa. The applicant was granted that visa.
On 21 April 2008 the applicant lodged a complaint with the Migration Agents Registration Authority (MARA) regarding aspects of the agent’s conduct. A copy of the complaint is annexed to the affidavit of Mr Yuille filed 19 November 2009.
On 9 September 2008 Mr Campbell, then the Senior Professional Conduct Officer of the MARA, wrote to the applicant, setting out his investigation of the applicant’s complaint, and concluding:
“Having considered all of the information before it, the MARA does not consider that there is sufficient evidence to make a finding against the Agent and has therefore decided to take no further action.”
This decision of the MARA…

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.

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Details

Case: [2010] FMCA 30
Decision Date: 22 January 2010

CaseChat Overview and Summary

The case of Hu v Minister for Immigration involved the applicant challenging decisions made by the Migration Agents Registration Authority (MARA) regarding his complaints. The applicant sought orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary issue was whether the decisions made by the MARA were subject to review under the ADJR Act. Specifically, the court had to determine if these decisions were 'decisions to which this Act applies' as defined in section 3 of the ADJR Act. This required examining whether the decisions were administrative in character, made under an enactment, and fell within the exceptions outlined in the Act.

The court considered the definition of a 'decision' as interpreted by the High Court in Bond v Australian Broadcasting Tribunal, which required the decision to be final or operative and determinative, at least in a practical sense, and substantive rather than procedural. The court found that while the MARA had made decisions not to re-open or investigate the applicant's complaints, these decisions were not substantive but rather procedural. Consequently, they did not meet the criteria for being a 'decision' under the ADJR Act. Furthermore, the court held that the decisions were not made under an enactment as they did not confer, alter, or affect legal rights or obligations in the required manner.

Based on these findings, the court concluded that the decisions sought to be reviewed were not subject to the ADJR Act. Therefore, the application for review was dismissed. The court also ordered that the proceeding against the first respondent be struck out, the second respondent's name be amended, and the applicant pay the respondents' costs, with certain exceptions.

Orders

Orders of the court

The proceeding against the first named respondent be struck out, and the first respondent be removed as a party to the proceedings.

The name of the second named respondent be amended to “Migration Agents Registration Authority” and the proceedings be continued against that respondent.

The application filed 13 August 2009 be dismissed.

The applicant pay the respondents’ costs of and incidental to the proceedings, to be taxed, save and except for those costs incurred by the respondents on 4 September 2009 and 2 October 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

An application for an order of review under the ADJR Act can only be brought in relation to a decision to which the ADJR Act applies: s.5(1). The term ‘decision to which this Act applies’ is defined in s.3 of the Act to mean:(1) In this Act, unless the contrary intention appears:decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;other than:(c) a decision by the Governor‑General; or(d)a decision included in any of the classes of decisions set out in Schedule 1. The respondent argues that each of the determinations not to re-open or take any further action on the applicant’s complaints:a)Was not a ‘decision’ as that term has been judicially considered;b)Was not ‘made under an enactment’. The seminal authority on the meaning of ‘decision’ is that of the High Court of Australia in Bond v Australian Broadcasting Tribunal (1990) 170 CLT 321. In that case it was decided that:a)For a determination to be a reviewable decision it will generally, but not always, entail a decision required by or authorised by a statute which is final or operative and determinative, at least in practical sense, of the issue of fact falling for consideration;b)An essential quality of a reviewable decision is that it be a substantive rather than a procedural determination. A decision was made, on 9 September 2008, by the MARA, not to take further action on the applicant’s complaints. On that date the decision maker dealt with the applicant’s complaints in a final or operative and determinative sense. Thereafter, in my opinion, no final or operative decision, of a substantive nature has been made by the MARA. The MARA has repeatedly decided not to re-open or further investigate the applicant’s complaints, including on the two occasions in respect of which the applicant seeks review. However, none of those decisions was a substantive rather than a procedural determination. As the respondent submits, to hold that on each occasion the MARA decided not to re-open the applicant’s complaints there was a reviewable decision made, would have the effect that the applicant could endlessly engage the MARA in applications for review, and the situation would become never ending. I accept the respondent’s submission that neither decision sought to be reviewed by the applicant was a decision to which the ADJR Act applies. I also accept that neither of the two challenged decisions was made under an enactment, as that phrase has been interpreted. In Griffith University v Tang (2005) 221 CLR 99 at [89] the majority justices said:“The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.”

Ratio Decidendi

Legal Principle Established

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