Mathews, P.J. v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 409

IN THE FEDERAL COURT OF AUSTRXLA	)
QUEENSLAND DISTRICT REGISTRY	) Nos. QG52/53 of 1992
GENERAL DIVISION	1

- No. OG 52 of 1992

BETWEEN: PETER JOSEPH MATHEWS

Applicant

AND: MINISTER OF IMMIGR&TION AND ETHNIC AFFAIRS First

Respondent

AND: MORAG CAMERON

Second Respondent

NO. OG 53 of 1992

BETWEEN: PETER JOSEPB MATHEWS

Applicant

AND: MINISTER FOR DEPARTMENT OF SOCIAL SECURITY

First Respondent

AND: MORAG CANERON

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	SPENDER J.
DATE OF ORDER:	1 JUNE 1992
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    Proceedings No. G52 of 1992 and No. G53 of 1992 be dismissed.

NOTE:	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

2.    There be no order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 Nos. QG52/53 of 1992
G E N E W DIVISlON	)

No. OG 52 of 1 9 9 2

BETWEEN: PETER JOSEPH MATHEWS

Applicant

AND: MINISTER OF IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

AND: MORAG CAMERON

Second Respondent

No. OG 53 of 1992

BETWEEN: PETER JOSEPH MATREWS

Applicant

AND: MINISTER FOR DEPARTMENT OF SOCIAL SECURITY

First Respondent

AND: MORAG CILElERON

Second Respondent

CORAM : Spender J.

PLACE : Brisbane

1 June 1992

EX TEMPORE REASONS FOR JUDGMENT

I have four notices of motion which seek that proceedings No. G52 of 1992 and and No. G53 of 1992 be stayed or dismissed,
pursuant to 0. 2 0 r. 2 of the Federal Court Rules.	That rule
relevantly provides that:

"

2 ( l ) Where in any proceeding it appears to the

Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -

(a)	no reasonable cause of action is disclosed;
(b)	the proceeding is frivolous or vexatious; or
(c)	the Court, the proceeding is an abuse of the process of

the Court may o r d e r t h a t the proceeding be s tayed

o r d i sm i s sed g e n e r a l l y o r i n r e l a t i o n t o a n y c l a i m

f o r r e l i e f i n t h e proceed ing . "

I propose to dismiss both of these proceedings, but because I am conscious of the concern Mr Peter Joseph Mathews, the applicant in each of these proceedings, has about matters which these applications touch, I will set out a little more fully my reasons for dismissing the applications. The basis for the dismissal is that Mr Mathews in the relevant legal sense lacks standing to seek the relief claimed.

On 7 April, Mr Mathews filed two applications. In

proceedings No. G52 of 1992 which is said to be between him as applicant and the Minister o f Immigration and Ethnic Affairs as first respondent and one Morag Cameron as second respondent,

Mr Mathews sought four orders as follows:

( 1 ) That t h e Department o f Imnligration and

E thn i c A f f a i r s produce documents and answer

q u e s t i o n s	p e r t a i n i n g	t o	f i l e	number	Q90-
4 75 4 -Mora g	Cameron ;

(2 )

i s c l a s s i f i e d a s b e i n g an i l l e g a l immigrant;

That a d e c l a r a t i o n be ob ta ined t h a t Cameron

( 3 )

An o r d e r t h a t the f irst responden t (Dept .

Inmigra t ion and E t h n i c A f f a i r s ) proceed t o

e x e c u t e t h e d e p o r t a t i o n o r d e r and t o depor t

t h e second r e sponden t (Morag Cameron) from

A u s t r a l i a f o r t h w i t h ;

( 4 )

t h a t an i n j u n c t i o n be granted r e s t r a i n i n g

the f i r s t r e sponden t (Dept . Immigration and

E thn i c A f f a i r s ) from gran t i ng pas spor t s t o

t h e f o l l o w i n g Aus t ra l i an -born c h i l d r e n .

Chr i s t opher N ico l Mathews, 18.1.83,

K i r s t y Deane Mathews,	22.8.86,
L i n d s e y Anne Mathews,	1.3.89

each o f whom I am t h e n a t u r a l f a t h e r . "

The second application in G53 of 1992 had M r Mathews
as applicant and the Minister for the Department of Social

Security as the first respondent and Morag Cameron as the second

respondent. In that application he sought two orders:

1. Tha t the Minister f o r S o c i a l S e c u r i t y p r o v i d e

e v i d e n c e under the A u s t r a l i a n C o n s t i t u t i o n and

S o c i a l S e c u r i t y A c t t h a t a p e r s o n s u c h a s the

second r e s p o n d e n t (Morag Cameron), t h a t per son

b e i n g c l a s s i f i e d by Dept .	o f I m m i g r a t i o n	a s b e i n g
" a n i l l e g a l immigrant"	c a n be	the r e c i p i e n t o f a n y

b e n e f i t s	a v a i l a b l e	t o A u s t r a l i a n	c i t i zens ,	i .e .
s p e c i a l	b e n e f i t / f a n t i l y	a l l o w a n c e ,	when	s u c h

a u t h o r i t y a s S o c i a l S e c u r i t y h a v e since 1903 b e e n

aware o f s u c h persons s t a t u s and h a v e been

c o n t i n u o u s l y	a d v i s e d	a c c o r d i n g l y ,	i n c l u d i n g	a
l e t t e r t o the Minister	d a t e d	9 t h June	91	s t a t i n g

o f the d e c i s i o n t o w i t h d r a w f u r t h e r s u p p o r t f o r

her a p p l i c a t i o n t o remain i n A u s t r a l i a , a t which

t i m e , upon r e c e i p t s u c h b e n e f i t t o the second

r e s p o n d e n t - Morag Ca~tieron s h o u l d h a v e c e a s e d ;

2. Tha t an o r d e r a g a i n s t the f i r s t r e s p o n d e n t

r e q u e s t i n g reintbursenient o f Camerons b e n e f i t from

the a p p l i c a n t i n the d e p a r t m e n t ' s a t t e m p t t o

i n t i m i d a t e the a p p l i c a n t be made f o r t h w i t h .

As the nature of the orders sought in those two proceedings suggest, Mr Mathews has had a de facto relationship with Morag Cameron. It is clear from the material that that	relationship has ceased. It is also clear that there is an	element of vindictiveness in Mr Mathews towards the second
respondent. It is understandable that a father should be concerned at the possibility of his children being taken from Australia to places which would make access difficult and whlch would limit the possibility of exercising his rights as father of those children.
While I am conscious of that quite understandable concern, I have formed the clear view that each of these proceedings is incompetent and should be dismissed.
As to any dealings between the Minister for Department of Social Security and the second respondent, it seems to me that Mr Mathews lacks standing to complain of any conduct by the Minister which touches the entitlement of the second respondent to social security benefits.

.

A similar position applies in relation to the status of Morag Cameron and any decision made by the Minister for Immigration and Ethnic Affairs concerning her.

The one matter which has troubled me concerns the relief claimed in the application concerning passports for the three children. As the affidavit of Fr Abdul Aziz Essa (the assistant manager operations wi.thin the Department of Immigration, Local Government and Ethnic Affairs) makes plain,

Pursuant to the administrative arrangements which appear in the the issuing of passports is not a function of that department. Commonwealth of Australia Gazette No. S37 of 5 February 1992 the issuing of passports pursuant to the Passuorts Act 1938 is a function of the Department of Foreign Affairs and Trade. M r Essa swears that:

" Accordingly, the first respondent has no intention of issuing passports to the children mentioned in this application. "

There is no basis for the relief claimed in paragraph 4 of the application in G52 of 1992, which is based on a misunderstanding as to which is the relevant government department.

It seems to me that the concern of Mr Mathews about the passports for his children is a matter in which his rights are suitably protected.

I have been told by Dr Jensen, counsel for the first respondent in each matter, and by Mr Boccabella who is counsel for Morag Cameron, that no passport has been issued in respect of any of the children and that it would require the written consent of both parents before a passport can be issued or, alternatively, an order of the Family Court of Australia. It is unlikely in the events that have happened and in particular the litigation which has, it appears, been brought in the Family Court of Australia concerning the question of custody of these children that an order of the Family Court of Australia

concerning passports for the children would be made without any	notice to Mr Mathews.
As to the other matters which he wishes to agitate in the Federal Court of Australia, in my view he lacks standing. In Australian Conservation Foundation Inc. v. The Commonwealth (1978-1980) 146 C.L.R. 493, Gibbs J., as he then was, dealing with the question of standing to sue said at 526:

"	It is quite clear that an ordinary member of the public, who has no interest other than that which
a p u b l i c r i g h t or t o e n f o r c e the per formance o f a
p u b l i c d u t y . T h e r e i s n o d i f f e r e n c e , i n th is
r e s p e c t , b e t w e e n the m a k i n g o f a d e c l a r a t i o n and
the g r a n t o f a n i n j u n c t i o n . The a s s e r t i o n o f
p u b l i c r i g h t s and the p r e v e n t i o n o f p u b l i c wrongs
by means o f those r e m e d i e s i s the r e s p o n s i b i l i t y
o f the A t t o r n e y - G e n e r a l , who m a y proceed either ex
o f f i c i o or on the r e l a t i o n o f a p r i v a t e
i n d i v i d u a l . A p r i v a t e c i t i zen who h a s no s p e c i a l
i n t e r e s t i s i n c a p a b l e o f b r i n g i n g p r o c e e d i n g s for
t h a t purpose , u n l e s s , o f c o u r s e , he i s p e r m i t t e d
by s t a t u t e t o d o so. "

I n A u s t r a l i a n Foreman S t e v e d o r e s A s s o c i a t i o n v . Crone

( 1 9 8 8 ) 20 F.C.R. 377 , P i n c u s J s a i d a t 382 i n r e s p e c t o f the

q u e s t i o n o f s t a n d i n g :

" The a p p l i c a n t s m u s t show t h a t they a r e p e r s o n s

a g g r ~ e v e d . The a u t h o r i t i e s show t h a t i t i s

n e c e s s a r y t o c o n s i d e r w h e t h e r (and , i f so, t o what e x t e n t ) an a p p l i c a n t i s a f f e c t e d i n some p r a c t i c a l way by a d e c i s i o n s o u g h t t o be a t t a c k e d . I t i s

not	enough	t o show t h a t the a p p l i c a n t h a s a sense
o f g r i e v a n c e or r e s e n t m e n t .	F u r t h e r ,	i t now seems

t o be a c c e p t e d t h a t q u e s t i o n s o f d e g r e e a r i s e , a t

l e a s t i n some s t a n d i n g d i s p u t e s . Many

governmental d e c i s i o n s i n d i r e c t l y a f f e c t the

interests o f a l a r g e number o f p e o p l e , not a l l o f

whom	h a v e a	r i g h t	t o s u e	u n d e r	the A d m i n i s t r a t i v e
D e c i s i o n s	( J u d i c i a l	R e v i e w )	A c t .	A	d e c i s i o n

f a v o u r a b l e t o one c i t i z e n may a f f e c t many others:

some d i r e c t l y , and some more r e m o t e l y . T h e r e i s

a p o i n t , w h i c h m u s t be f i x e d a s a m a t t e r o f

judgment i n e a c h c a s e , beyond which the c o u r t m u s t

h o l d t h a t the interests o f those a f f e c t e d a r e too i n d i r e c t l y a f f e c t e d t o be r e c o g n i s e d . "

I n my judgment , t h i s i s such a c a s e .

F i n a l l y , i n Onus v. A l c o a o f A u s t r a l i a L i m i t e d ( 1 9 8 1 )

149 C.L.R. 2 7 , Gibbs CJ s a i d a t 35:

" I f a n a t t e m p t were made t o frame a n i d e a l l a w

g o v e r n i n g the s t a n d i n g o f a p r i v a t e p e r s o n t o s u e

f o r s u c h a p u r p o s e , i t would be n e c e s s a r y t o g i v e

w e i g h t	t o c o n f l i c t i n g c o n s i d e r a t i o n s .	On	the	one
hand	it may be	t h o u g h t	t h a t i n a	communi ty w h i c h

professes t o l i v e by the rule o f l a w the courts should be open t o anyone who genuinely seeks t o prevent the l a w from being ignored or violated. On the other hand, i f standing i s accorded t o any c i t i zen to sue t o prevent breaches o f the l a w by

another, there ex i s t s the possibi l i ty , not only

that the processes o f the l a w w i l l be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue w i l l be prepared t o put some other ci t izen, with whom they have had no relationship, and whose actions have not affected then] except by causing them intellectual or emotional concern, to very great cost and inconvenience i n defending the l ega l i t y o f h i s actions. Moreover, ideal rules a s t o standing would not f a i l t o take account o f the fact that i t i s desirable, i n an adversary system, that the courts should decide only a real controversy between parties each o f whom has a direct stake i n the outcome o f the proceedings. The principle which has been settled by the courts does attempt

a reconciliation between these considerations.

That principle was recently stated i n Australian Conservation Foundation Inc v. The Commonwealth. A p l a i n t i f f has no standing t o bring an action t o prevent the violation o f a public right i f he has no interest i n the subject matter beyond that o f any other member o f the public; i f no private right o f h i s i s interfered with he has standing t o sue only i f he has a special in teres t i n a subject matter o f the action. The rule i s obviously a f lexible one since, as was pointed out i n that case, the questlon what i s su f f i c i en t interest w i l l vary according t o the nature o f the subject matter

o f the l i t igat ion.	'l
For the reasons that I have outlined I am sat is f ied

that Mr Mathews lacks standing i n respect o f the r e l i e f which he

claims i n each o f the applications No. G52 o f 1992 and No. G53 of 1992. I am conscious o f his concern concerning the issuing o f passports t o his children, but that concern does not touch any

o f the r e l i e f which he seeks i n these applications.

I order that proceedings No. G52 of 1992 and No. G53

of 1992 be dismissed.

Notwithstandingthe ordinary ru le , i n t h e circumstances

of t h i s case I make no order as t o costs i n respect of each

matter .

I c e r t i f y that t h i s and the preceding seven pages are a t rue copy o f the reasons for judgment herein o f the Honourable M r .

Jus t ice Spender.

Date: 1 ~unP/1992 ' W

The applicant appeared i n person.

Counsel	for the f i r s t respondent:	D r C Jensen
instructed b y	:	Austn. Govt. Sol ic i tor

Counsel for the second respondent:  M r L Boccabella

instructed b y	:	Goss Downey Carne
Date o f Hearing	:	1 June 1992