Hu v Minister for Immigration & Anor [2010] FMCA 30 (22 January 2010)

Federal Magistrates Court of Australia

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Hu v Minister for Immigration & Anor [2010] FMCA 30 (22 January 2010)

Last Updated: 27 January 2010

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) Act 1977, ss.3, 5 Federal Magistrates Act 1999, s.17A Federal Magistrates Court Rules 2001, r.13.10

McGowan v Migration Agents Registration Authority [2003] FCA 482; (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] HCA 7; (2005) 221 CLR 99 Australian Conservation Foundation v Commonwealth (1980)146 CLR 493 Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (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

(1) The proceeding against the first named respondent be struck out, and the first respondent be removed as a party to the proceedings.
(2) The name of the second named respondent be amended to “Migration Agents Registration Authority” and the proceedings be continued against that respondent.
(3) The application filed 13 August 2009 be dismissed.
(4) 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

1. 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.
2. 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.
3. 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.”
4. This decision of the MARA has not been challenged.
5. Correspondence then passed backwards and forwards between the applicant, Mr Campbell and other employees of the MARA, in which the applicant sought to persuade the Authority to further investigate his complaints, and the Authority consistently refused to do so.
6. On 19 June 2009, the Executive Officer of the MARA wrote to the applicant. In it:
   1. The author wrote:
      • “The purpose of this letter is to:
        • Provide you with the Authority’s response to your email of 28 April 2009
        • Explain to you the role of the Authority and the reasons for its decision not to take any further action in relation to your complaint
      • Please note that your complaint letter and all of the matters you have raised in your extensive correspondence with the Authority have been considered and taken into account by the Authority in reaching its decision. The Authority will not enter into further correspondence with you in relation to this complaint.
   2. The role and functions of the MARA were explained;
   100. The author carefully explained how the applicant’s complaints had been dealt with;
   4. Summarised the applicant’s complaints and again dealt with each of them;
   5. The MARA affirmed its previous decision not to take any further action in the matter.
7. Notwithstanding the passages set out in paragraph 6a above, the applicant continued to correspond with the Authority. On 28 July 2009, Mr Campbell again wrote to the applicant and stated that:
   1. The applicant’s complaint against the migration agent was finalised on 19 June 2009;
   2. MARA will only re-open complaints where new evidence is presented;
   100. The applicant had not produced any evidence in his emails of 20 or 22 July; and
   4. The complaint would not be re-opened.
8. In a letter dated 6 August 2009 from the MARA it was stated:
   1. There was no new evidence on which to justify re-opening the case, which was concluded on 19 June 2009;
   2. That the complaint had been fully investigated and the decision stands.
9. On 13 August 2009 the applicant filed an application to review decisions, purportedly made by the delegate of the Department of Immigration and Citizenship. The applicant sought to judicially review a decision made by either the delegate, or by the Office of the Migration Agents Registration Authority, to take no further action on a complaint made by the applicant against a migration agent. Copies of the letters dated 28 July and 6 August 2009 were attached to the Application. It could reasonably be inferred that these were the documents containing the decisions that were challenged.
10. The applicant has represented himself in these proceedings. His documents and oral submissions were not always easy to follow. The applicant was offered the assistance of a pro bono legal representative but declined, preferring to represent himself.
11. As stated, the Application was filed naming the Department of Immigration and Citizenship as respondent. It was not clear from the face of the Application what claim the applicant sought to maintain against the Department (assuming it was a legal entity capable of being sued).
12. In order to better understand the applicant’s case, and to enable the Department to respond to it, by order of 4 September 2009 the applicant was required to identify the decision or decisions that he sought to challenge and particularise the grounds of challenge. He was also required to articulate the basis of his claim against the Department of Immigration and Citizenship.
13. At annexure C to his affidavit filed 10 September 2009 the applicant states that he seeks to challenge the following decisions:
    1. That of 28 July 2009 (not to re-open the investigation into the applicants’ complaints), pursuant to ss. 5(1)(a), (b), (c), (e), (g), (h) and (j) of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”);
    2. The decision of 19 June 2009 (not to re-open the investigation into the applicants’ complaints) pursuant to ss. 5(1)(a), (b), (e), (f), (g), (h) and (j) of the ADJR Act.
14. The applicant provided no further particularisation of the grounds of review upon which he relied.
15. In the same annexure the applicant also sets out the basis of his claim against the Department.
16. The Office of the Migration Agents Registration Authority appeared as did the Department, by same legal representative.
17. By amended application in a case filed 13 November 2009 the respondents seek the following orders:
    • (1) That the First Respondent, the Department of Immigration and Citizenship, be removed as a party to these proceedings.

(1A) That the title of the Second Respondent be amended so as to read “Migration Agents Registration Authority”.

(2) That the Application for Review, filed on 13 August 2009, be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) or alternatively section 17A of the Federal Magistrates Act 1999 (Cth).

Particulars:

(a) The “decisions” of which the Applicant purports to seek review are not decisions reviewable pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), as they do not fall within the definition of “decisions to which [the ADJR Act] applies”;
(b) Further, and in the alternative, the Applicant in this matter does not have standing to seek review of those decisions, as he does not fall within the definition of “a person who is aggrieved by a decision to which [the ADJR] applies”;
(3) The Applicant pay the Respondents’ costs of and incidental to this application.

18. The two procedural matters can be conveniently dealt with first.
19. Although an appearance was entered on behalf of the Office of the Migration Agents Registration Authority, it is apparent that the correct title of the respondent should be Migration Agents Registration Authority. That is the defined term in s.275 Migration Act 1958. It is the appropriate respondent: McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118. The applicant himself seems to recognise that in his affidavit of 8 October 2009, yet opposed the correction of the name of the second named respondent.
20. An order will be made correcting the name of the second named respondent to accord with its correct statutory identity. The applicant cannot be prejudiced by that order.
21. It is obvious from the applicant’s extensive material that he seeks to challenge the decisions of the statutory body responsible for investigating complaints against migration agents, and if thought appropriate, taking disciplinary action. In his oral submission the applicant said that his complaint had always been handled by MARA.
22. I adopt as accurate, the summary of the legislative provisions set out at paragraphs 8 – 15 of the respondents’ submissions.
23. The applicant has no case against the first respondent. The applicant has failed, in annexure C to his affidavit filed 10 September 2009, to articulate any justiciable claim against the Department. As the respondent submits, while certain officers of the department are able to exercise and perform the powers of the MARA during any period when the Migration Institute of Australia is not appointed under s.315, they do so in their capacity as delegates of the Minister. In the letter of 19 June 2009 it is evident that the MARA is being conducted by the Institute. The applicant’s case is plainly against MARA for failing to re-open the investigation into his complaints, and to take action against the applicant’s former migration agent.
24. The claim against the first named respondent should be struck out, and the name of the first respondent removed from the proceedings.
25. I turn then to consider the substantive application brought by the MARA, to summarily dismiss the application pursuant to s.17A Federal Magistrates Act 1999 or Rule 13.10 Federal Magistrates Court Rules 2001.
26. The argument that the claim should be summarily dismissed is that, as a matter of law, the applicant has no entitlement to seek the relief that he has.
27. In those circumstances, it is not necessary to enter into the interesting debate as to the appropriate test to apply on an application for summary dismissal: see Ninatoca Pty Ltd & Anor v Kovari Professional Pty Ltd & Ors (No. 2) [2008] FMCA 947 and the cases cited therein.
28. Either the respondent’s legal argument is a good one or it is not.
29. It is apparent from the Application filed by the applicant that he seeks review under the ADJR Act of two decisions of the MARA. The respondent argues that the applicant cannot succeed to the relief he seeks because:
    1. Neither decision sought to be reviewed is a decision to which the ADJR Act applies;
    2. The applicant is not “a person aggrieved by” either decision, within the meaning of s.3(4) ADJR Act.
30. 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.
31. The respondent argues that each of the determinations not to re-open or take any further action on the applicant’s complaints:
    1. Was not a ‘decision’ as that term has been judicially considered;
    2. Was not ‘made under an enactment’.
32. 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:
    1. 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;
    2. An essential quality of a reviewable decision is that it be a substantive rather than a procedural determination.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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] HCA 7; (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.”
38. The MARA is empowered under the Migration Act to investigate complaints against migration agents, and to take appropriate disciplinary action: s.316(c) and (d). It is also empowered to do all things necessarily or conveniently done for, or in connection with the performance of its functions: s.317. In my view, that would extend to making a decision to re-open an investigation to further investigate complaints against a migration agent, and if that further investigation warranted it, to then take disciplinary action that it had earlier decided not to take. To that extent, it can be accepted that the first criteria referred to in Griffith University v Tang is arguably satisfied.
39. However, the decisions not to re-open the investigation did not affect the applicant’s legal rights or obligations. Indeed it is questionable as to whether the applicant had any legal right to have the complaint investigated in the first place. Even if he did, that has occurred. Whether the applicant is a ‘person aggrieved’ is considered shortly.
40. Because the second criteria identified in Griffith University v Tang is not satisfied in this case, it follows that neither of the decisions sought to be reviewed by the applicant was a decision under an enactment.
41. Under s.5(1) ADJR Act, an application for review can only be made by a person aggrieved by a decision. The concept of “person aggrieved by a decision” is given content by s.3(4) ADJR Act as follows:
    • (4) In this Act:
      • (a) a reference to a person aggrieved by a decision includes a reference:
        • (i) to a person whose interests are adversely affected by the decision; or
        • (ii) in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and
      • (b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.
42. The applicant’s “interests” are not adversely affected by any decision of the MARA, either not to investigate a complaint, not to take disciplinary action, or not to re-open the investigation whether on production of fresh evidence or otherwise.
43. In Australian Conservation Foundation v Commonwealth (1980)146 CLR 493 Gibbs J at 530 said:
    • “I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”
44. Ordinarily, if no private right of an applicant is infringed, some special interest must be shown to demonstrate that the applicant is a person aggrieved by an administrative decision.
45. In this case, the applicant has no private right to have his complaint acted upon. He has no special interest in the handling of, or outcome of that complaint, or of any decision not to take further action on the complaint.
46. In Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 at 79 Ellicott J said:
    • “...The words ‘a person who is aggrieved’ should not, in my view. Be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties ...”
47. I accept the respondent’s submission that the two decisions complained of by the applicant had no effect on him at all, other than to engender an understandable sense of grievance that the wrong decision had been made and that the migration agent had unfairly escaped sanction. The position cannot be better put than at paragraphs 68 – 76 of the respondent’s excellent written submissions.
48. In conclusion, therefore, I accept the submission of the respondent that:
    1. Neither of the two decisions sought to be reviewed was a ‘decision’ as that term has been construed;
    2. Neither of the two decisions was made under an enactment, because neither affected the applicant’s legal rights or obligations;
    100. The applicant was not a person aggrieved by the making of either of the two decisions sought to be reviewed.
49. It follows that the applicant has no prospects of success in his application for review. The proceedings should be summarily terminated.
50. I should deal with three further matters. First, the applicant has devoted considerable energy to advancing an argument that because the respondents did not file documents strictly in compliance with orders of this Court, he should be entitled to default orders against the respondent, together with costs. I dealt with some of these arguments in my earlier decision at [2009] FMCA 998.
51. The fact is that the application of the applicant is misconceived. At some stage in the proceedings he was going to have to confront the arguments advanced by the respondent on its interlocutory application. If those arguments were left until the final hearing a much greater costs exposure would arise if the applicant was unsuccessful. In my view, there is no substance or practical utility in any of the applicant’s submissions concerning the conduct of the respondent’s legal representatives.
52. Secondly, on 23 December 2009 the applicant sent an email to the Court making further submissions in the proceeding. The respondent’s solicitor objects to those submissions being accepted, after the close of the proceeding. I have read the further submission. Nothing in it is relevant to the issues I have to decide. I decline to permit the applicant to file the further submission.
53. Thirdly, there is the issue of costs. The initiating application is to be summarily terminated. The respondent should recover its costs of responding to the substantive application, and of its interlocutory application. However, the respondent twice failed to comply with procedural orders of the Court, and failed to file its documents on time. It should not recover its costs of and incidental to those two appearances.
54. There will be orders as set out at the commencement of these reasons.

I certify that the preceding 54Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-fourfifty-four (54) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 22 January 2010