Singh v D.E.E.W.R. [2009] FMCA 53 (6 February 2009)

Last Updated: 20 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v D.E.E.W.R.

[2009] FMCA 53

ADMINISTRATIVE LAW – Question of Court’s jurisdiction – application for summary dismissal – whether decision under review a decision made under an enactment – nature of decision made – decision the exercise of the general powers of a public servant – decision not under s.43 of Education Services for Overseas Students Act 2000 (the ESOS Act) as contended by the applicant – relationship between ESOS Act and Migration Act 1958 – substantive application dismissed for want of jurisdiction.

Administrative Decisions (Judicial Review) Act 1977, s.3(1) Education Services for Overseas Students Act 2000, s.43 Migration Act 1958, ss.137J and 499 Public Service Act 1922 Federal Magistrates Court Rules 2001, r.13.10(a)

Dey v Victoria Railways Commissioners [1949] HCA 1 (1949) 78 CLR 62 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR1; [2005] HCA 12; (2005) 241 ALR 92; (2005) 79 ALJR 755 (10 March 2005), [228] General Steele Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125 at 128 - 129 McKellar v Container Terminal Management Services Limited [1999] FCA 1101 (1999) 164 ALR 409 NBGZ v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA FC 119 (29 June 2005) at [16] - [23] Pridmore v Magenta Nominees Pty Limited [1999] FCA 152 (1999) 161 ALR 458

Applicant:

BHUPINDER SINGH

Respondent:

THE SECRETARY OF THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

File Number:

MLG 664 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

12 September 2008

Delivered at:

Melbourne

Delivered on:

6 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Da Gama Pereira & Associates Pty Ltd

Counsel for the Respondent:

Ms Miller

Solicitors for the Respondent:

Australlian Government Solicitor

ORDERS

(1) The application filed on 3 June 2008 is dismissed.
(2) The applicant pay the respondent's costs of the proceeding.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 664 of 2008

BHUPINDER SINGH

Applicant

And

THE SECRETARY OF THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This proceeding came before me on an interlocutory application by the respondent as set out in his Response to have the substantive application dismissed on the ground that this Court did not have jurisdiction.
2. On 14 July 2008 I made directions providing for the respondent to file and serve submissions in support of his application for summary dismissal, and for the applicant to respond. Both complied with those directions.
3. It is clear, both in respect of the ground set out in the Response and in the respondent's submissions in support of that ground, that when this matter came on for hearing before me, it was to be a hearing in relation to whether this Court had jurisdiction to entertain the substantive application. This point has to be made because the applicant at the hearing had taken the view that the hearing centred upon whether, pursuant to r.13.10 (a) of the Federal Magistrates Court Rules 2001, the applicant had "no reasonable prospect of successfully prosecuting the proceeding or claim." The applicant did not come to the hearing with an expectation that it would be centred upon the very basic question of whether this Court had jurisdiction.
4. Accordingly, the written submissions of the applicant centred upon whether there was an arguable case, assuming jurisdiction, and made detailed reference to the authorities that address the necessary considerations as to whether an application should be dismissed summarily. The written submissions addressed some arguable points raised by the applicant's application with a view to persuading the Court that there was, indeed, an arguable case and that it was not "hopeless", side stepping, in my view, the very real and basic question of whether this Court had jurisdiction to entertain the review.
5. The respondent's submission that the nature of the hearing that was to take place before me, based upon the Response and the submissions made by the respondent in support of the application in the Response, clearly identified, in my view, that the central issue for the hearing was one of this Court's jurisdiction.

BACKGROUND

6. In the substantive application, the applicant seeks to review the decision of an officer of the Department of Education, Employment and Workplace Relations (the Department) not to investigate whether an education provider was in breach of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code) applicable to such education providers under the Education Services for Overseas Students Act 2000 (the ESOS Act).
7. The applicant is an Indian citizen who was a student of an education provider registered under the ESOS Act. The education provider was the Meridian International Hotel School.
8. On 16 October 2007 Meridian issued to the applicant a Notice pursuant to s.20 of the ESOS Act for failure to attend at least 80 per cent of contact hours scheduled, which requirement was a condition of his visa (Condition 8202).
9. On 9 November 2007 the applicant requested the Department to review Meridian's processes in relation to the s.20 Notice.
10. On 28 November 2007 the Department wrote to Meridian requesting information in relation to the s.20 Notice issued to the applicant. Meridian responded to this request by providing a short submission and copies of correspondence passing between Meridian and the applicant.
11. On 14 March 2008, an officer of the Department (the first officer) decided that Meridian was compliant with the relevant standards of the National Code in relation to the applicant. The first officer informed the Department of Immigration & Citizenship and Meridian of her decision.
12. On 27 March 2008 the applicant’s solicitor sent to the Department a copy of a submission dated 24 January 2008, which had previously been provided to the Department of Immigration & Citizenship.
    This submission was not before the first officer when she made her decision on 14 March 2008.
13. On 14 May 2008 the officer decided that he agreed with the first officer's decision; namely, that Meridian had complied with the relevant standards of the National Code in relation to the applicant. (the officer's decision). The applicant's solicitor was notified of the officer's decision.
14. The basis for the application for review is said to be the power referred to in s.43 of the ESOS Act. That section relevantly provides:
    • 43. States to investigate breaches of the national code.
      • (1) This section applies if:
        • (a) the Secretary has information suggesting a possible breach of the National Code by a registered provider for a state and;
        • (b) the source of the information is not the designated authority of that State.

(2) Before the Secretary investigates the matter further or takes any other action under this Act, the Secretary must notify the designated authority of the possible breach and may request the authority to investigate the matter or take any other suitable action.

(3) However, the Secretary may investigate the matter or take any other action:

• (a) without notifying the designated authority; or
• (b) without waiting for the designated authority to investigate or take any other action;
• if, in the Secretary's opinion, the circumstances of the possible breach require urgent action.

15. No issue was taken by the parties that the foundation for this Court's jurisdiction is found in the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). Section 3(1) relevantly provides:
    • (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 or whether before or after the commencement of this definition):
      • (a) under an enactment ...
16. In summary, the respondent submits that the decision of the officer of the Department was not a decision made under an enactment and, ipso facto, this Court does not have jurisdiction.
17. There is no issue, incidentally, that s.43 of the ESOS Act is an “enactment” for the purposes of the ADJR Act.

The respondent’s submissions

18. The respondent in submissions set out the legislative context of the ESOS Act and its inter-relationship with the Migration Act 1958 (the Migration Act), and the powers and responsibilities of the Minister for Immigration & Citizenship. That context, in my view, is important in gaining an understanding of the legislative intent behind the ESOS Act and how it should be interpreted.
19. In short, the ESOS Act is about education providers, the respondent's powers, and that of the Minister responsible, to monitor and regulate those providers and, if necessary, to take compliance action against them. Underpinning the ESOS Act, of course, is the desire of the Australian Government to ensure that the quality and standards of education provided to overseas students is at an appropriately high level and that students are not at risk of exploitation, the consequence of something less than such being a diminution of Australia's standing as an education provider in the global community.
    Further underpinning the ESOS Act is the implicit understanding that overseas students be protected. (See the objects set out in s.4A of the ESOS Act).
20. The Migration Act is also very significant in the context of this proceeding. Under the Migration Act provision is made for the cancellation of student visas if conditions are not met (see s.137J). Relevantly, s.499 of the Migration Act provides for the Minister for Immigration & Citizenship to provide directions as to how a person or a body having power or functions under the Migration Act should exercise of those powers. Relevantly, Direction 38 has been made by the Minister for Immigration an Citizenship which gives directions in respect of the cancellation of student visas for non-compliance with visa condition 8202.
21. Direction 38 requires the Minister for Immigration and Citizenship, or his delegate, when considering the cancellation of a student visa, to take into account any concerns by the Department, or, indeed, the education provider, about errors and/or inappropriate actions or omissions in the process leading to the breach and the reporting of it. This may include concerns in relation to monitoring of the student, the complaints handling and the appeals process and/or the certification and reporting process. (See paragraph 8 of the Direction 38).
22. Direction 38 is important because it shows the connection and relationship between the two departments, which the respondent argues is the basis of his assertion that the decision made by the officer of the Department was a decision made in furtherance of that officer's general powers of administration conferred on all public servants by the Public Service Act 1922 (the PS Act) to assist another department, in this case the Department of Immigration & Citizenship. The respondent submits that the exercise of that general power of administration does not constitute a decision made under the PS Act or under "an enactment" generally. In support of that contention the respondent cites Schokker v Commissioner of Taxation (1998) 82 FCR 113 at 123. In that case the Court considered whether a decision not to refer by the Australian Taxation Office a matter to the Director of Public Prosecutions was a decision reviewable pursuant to the ADJR Act. His Honour, RD Nicholson J concluded:
    • I do not consider the decision of Mr Dawson can properly be characterised as having being made "under" s.61(2). Nor was his decision "in pursuance of" or "under the authority of" that sub-section. There is no sufficiently close connection of the decision with the sub-section because the effect of the decision was no action pursuant to the sub-section was required.
    • I consider the decision falls within the general powers of administration conferred by the PS Act. Adopting the words of Black CJ in Hutchins at 272; 156 the decision was "authorised in the sense of being within the general scope of powers conferred ...but as to which the enactment could not be said to make provision". This conclusion is relevant to the policy considerations mentioned by Mason CJ in Bond at 336-337. As was said by the Full Court (von Doussa, Drummond and Mansfield JJ) in Salerno at 143-144; 718-719:
      • "[I]f a general authorisation in a statute for a decision ...is sufficient to make it a decision under the statute ...every intra-vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision would be examinable by the Court."
    • A situation the Full Court held not to be acceptable.
23. In like manner, the respondent submits that the decision not to investigate the education provider is one properly described as that examined in Schokker's case. To put the construction on the decision that the applicant would have the Court do would introduce a student complaint scheme into the ESOS Act in circumstances where the Act is clearly silent about such a scheme. The ESOS Act is silent about the rights and obligations of students, including the right to complain about their education provider. The respondent submits, with which submission I agree, that to construe s.43 as a de facto complaint system would be inconsistent with Parliament's intention.
24. The clear thrust and import, in my view, of s.43 is the coordination of investigations of State and Commonwealth authorities into suspected breaches of the National Code.
25. The respondent submits that the officer did not purport to exercise the powers under s.43. There is no reference, for instance, to a decision not to notify the designated authority for the State and there is no reference to any urgency of the matter.
26. The respondent more generally submitted that s.43 is not engaged by a request to investigate processes of an education provider in relation to a particular student. Section 43 is a serious power which must be exercised by the Secretary or the Secretary's delegate. It would be an onerous imposition on the secretary or a delegate to require them to investigate each and every complaint by a student under s.43. By way of background, counsel for the respondent advised that complaints of the nature lodged by the applicant run at the rate of approximately 100 per month.
27. In my view, the decision which the applicant seeks to review was not a decision that was made pursuant to a provision of the ESOS Act or a decision relevant to investigating breaches of the National Code under the ESOS Act, or for investigating possible breaches with a view to taking compliance action under the ESOS Act. Instead, the decision was made for the purpose of assisting a delegate of the Minister for Immigration and Citizenship in considering matters that were deemed to be relevant under Direction 38.
28. I am satisfied that the decision was made in the exercise of the officer's powers as a public servant and that such a decision is not reviewable under the ADJR Act because the decision was not made, purported to be made or required to be made under an enactment. The decision was authorised in a sense that it was within the general scope of powers conferred on the officer as a public servant, but it was not a decision for which an enactment, whether it be the PS Act, the Migration Act or the ESOS Act, made any provision.

APPLICANT'S SUBMISSIONS

29. As stated, the applicant in written submissions spent some time setting out the authorities applicable to questions of summary dismissal where the issue was whether there was an arguable case or not. It is not unfair to say that the applicant's focus was on the decision itself and the applicants written submissions paid scant regard to the significant and primary issue of whether this Court has jurisdiction to entertain the review.
30. In oral submissions, however, counsel for the applicant did mount an argument to the effect that there was an arguable case that the Court had jurisdiction and for that reason the application should be dismissed on the same bases as the authorities set out as important considerations before there can be a summary dismissal. In short, the applicant categorised the decision of the officer of the Department as one that was arguably an investigation and a determination under s.43. It is contended that the Department clearly embarked upon an investigation and clearly embarked upon a review.

CONCLUSION

31. In my view, the question must begin with, “what does the statute provide for?” and then see if what is provided for happened, instead of starting with decision and saying, "What Act can I fit it under?"
32. In my view, because an investigation is conducted for a purpose not related to the ESOS Act, just because the power to investigate for the purposes of the ESOS Act exists, does not automatically make an independent investigation fall under the terms of the ESOS Act.
33. On the question of whether or not there is an arguable case that this Court has jurisdiction, I am strongly of the view that such an argument has no reasonable prospect of success and for that reason the substantive application should be dismissed. In my view, that conclusion is "plain and obvious" and "so obviously untenable that it cannot possibly succeed" and in the terminology of the authorities cited by the applicant, the applicant's case is "manifestly groundless" or "manifestly faulty and it does not admit of argument", and is "a case which the Court is satisfied cannot succeed." (See D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR1; [2005] HCA 12; (2005) 241 ALR 92; (2005) 79 ALJR 755 (10 March 2005), [228]; NBGZ v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA FC 119 (29 June 2005) at [16] - [23]; General Steele Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125 at 128 - 129; Pridmore v Magenta Nominees Pty Limited [1999] FCA 152 (1999) 161 ALR 458; McKellar v Container Terminal Management Services Limited [1999] FCA 1101 (1999) 164 ALR 409; Dey v Victoria Railways Commissioners [1949] HCA 1 (1949) 78 CLR 62).
34. For the above reasons the substantive application filed on 3 June 2008 should be dismissed for want of jurisdiction.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 6 February 2009