Abraham v Attorney-General's Department Family Law & Legal Assistance Division

REASONS FOR JUDGMENT 1 It is easy to understand the circumstances which have driven the applicant Jemas Abraham (Mr Abraham) to his present claim. 2 He is an Australian citizen. In 1994, he married Saori Horikoshi, a Japanese citizen in Melbourne. On 6 March 1995, the couple had a daughter Lemlem Sara Jemas, also known as Sarah Lemlem Abraham Horiko. Mr Abraham and his wife separated on 28 July 1998. On 31 July 1998, the Family Court of Australia, on the application of Mr Abraham ordered, inter alia, that until further order he be given custody of his daughter and that his wife be restrained from removing his daughter from Australia. That order referred in terms to Lemlem Sara Jemas. On 1 or 2 August 1998, however, his wife left Australia with his daughter. She was identified on her passport as Sarah Lemlem Abraham-Horiko, so the computer watch list did not relate her to the order made shortly beforehand. His wife and his daughter apparently do not intend to return to Australia. His daughter is now six years old. 3 Mr Abraham has tried in vain to secure legal assistance to enable him to bring a claim in the appropriate Japanese court for custody of his daughter, and for permission to bring her back to Australia. He does not have the resources himself to do so. At material times the Commonwealth through the Attorney-General's Department has conducted a Scheme called the Overseas Custody (Child Removal) Scheme (the Scheme). The Scheme permits the provision of financial assistance to assist a parent to institute legal proceedings overseas for the recovery of that parent's child or children removed from Australia by the other parent and detained overseas against the wishes of the parent in Australia. The Scheme does not operate under any statutory aegis. 4 I note that Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. That Convention is designed to secure the return of children abducted or wrongfully retained by a parent in another Convention country. Japan is not, however, a signatory to the convention. 5 On 28 August 1998, Mr Abraham applied to the Scheme for legal assistance to bring proceedings in Japan for custody of his daughter, effectively including assistance to cover his return air fares to and from Japan and for his expenses whilst in Japan pursuing the claim. Eligibility for assistance under the Scheme (according to its guidelines) includes consideration of the resources otherwise available to the applicant for assistance, and whether it is reasonable in all the circumstances to provide assistance. As I have noted, there has at no point been any issue that Mr Abraham does not have resources otherwise available to him to travel to Japan to pursue a claim in the appropriate Japanese court for custody of his daughter. 6 A decision was made in relation to that application on 7 October 1998. It was to provide Mr Abraham with financial assistance to a limited extent to pay for an opinion from an appropriately qualified Japanese lawyer on the prospects of Mr Abraham successfully obtaining a delivery up order from the appropriate Japanese court against his wife, Saori Horikisho, enabling him to return to Australia with his daughter. The amount of the assistance specified for that purpose was fixed at $2000. 7 On 15 January 1999 Mr Abraham received such an opinion. It advised "that there is little prospect of obtaining an order from a Japanese court that the wife return to Australia with the child" and that "there are some prospects of obtaining an order of the Japanese court that his wife should deliver the child to the husband so that the husband may return to Australia with the child, but that such prospects are not particularly great". It referred to factors to which a Japanese court would have regard in making such a decision, including of course the happiness and welfare of the child. 8 On 29 January 1999 Mr Abraham was advised that, having regard to that opinion, the decision had been made to refuse to extend the grant of legal assistance. The decision maker, in the light of that legal advice observed: " … I am of the view that Mr Abraham's prospect of obtaining a Japanese court order for his daughter to be returned to Australia are not good. In these circumstances I do not consider that it is reasonable to approve an extension of his present grant to meet the costs of instituting proceedings in Japan. Finally, I also do not consider that it would be reasonable to grant assistance having regard to the estimated costs of the proceedings in light of existing available funds. To make a grant of approximately $A160,000 to $A250,000 would seriously impact on any future applications for financial assistance." 9 On 12 February 1999, Mr Abraham through his then solicitors sought review of that decision. Those solicitors pointed out, inter alia, that the estimate of cost to bring the proceedings in an appropriate Japanese court was in the order of $32,621 rather than the figure to which the decision maker had referred. On 25 February 1999, the decision notified on 29 January 1999 was affirmed. Mr Abraham was notified of that affirmation by letter of 25 February 1999. 10 Mr Abraham did not let the matter rest there. He has since made representations to such persons as he has been able to identify who might assist him in seeking a further review of that decision. Those persons have included his member of Parliament and the Commonwealth Ombudsman. His efforts to date have been unsuccessful. 11 Mr Abraham also brought proceedings against the "Australian Federal Police" claiming that they were somehow in breach of statutory duty or negligent in allowing his daughter to leave Australia. The relief sought appears to have been an injunction compelling the Commonwealth to provide him with funding to travel to Japan and to conduct legal proceedings in Japan to seek custody of his daughter. Those proceedings were summarily dismissed as not being capable of disclosing a cause of action. That decision was upheld on appeal: Abraham v Commonwealth of Australia [1999] FCA 1613. 12 On 25 May 2001 Mr Abraham again applied for legal assistance under the Scheme. The application was twofold. It sought $24,000 to enable him to travel to Japan and to remain in Japan whilst he pursued a claim in the appropriate Japanese court for custody of his daughter, and to engage a lawyer in Japan to represent him. No fresh information relevant to that issue was provided to the decision-maker. He also sought money to travel to Japan so he could make contact with his daughter in Japan. That latter aspect of his application was refused on the basis that costs for that purpose are not included as permissible costs under the scheme. No issue on that aspect of the decision arises on this application. 13 A delegate of the Attorney-General considered that new application. On 20 July 2001 Mr Abraham was notified that that further application for financial assistance under the Scheme was refused. He was also sent in a separate letter of 16 July 2001 which conveyed to him that the further financial assistance sought could not be granted as the legal opinion advised that the prospects of success for the proposed claim in Japan were not good. 14 It is the decision rejecting the application of 25 May 2001 which is now the subject of review before the Court. However, it is only that part of the decision to refuse to provide funding under the scheme to enable Mr Abraham to bring legal proceedings in Japan which is the subject of the present application for review. 15 Mr Abraham no longer has the benefit of legal representation. He clearly drew the application to the court himself, and he appeared on the application in person. The application seeks an order directing the Attorney-General to pay all the expenses for him to take legal action in Japan to bring his daughter back to Australia. It is not surprising in the circumstances that the grounds of the application do not identify any legal grounds of review, but simply refer briefly to the circumstances in which his daughter came to leave Australia and to include a complaint that the law does not protect him. Nor does his affidavit filed in support of the application identify any such grounds. There is some scope for discerning an ambiguity in the letter of 20 July 2001 which might suggest that the decision-maker had misunderstood the purpose of the application made by Mr Abraham. The terms of that letter might be seen as indicating that the decision-maker had not appreciated the twofold nature of the application, and had rejected it on the basis that the Scheme did not provide for funding of persons such as Mr Abraham simply to travel overseas to make contact with a child or children wrongly taken overseas. However, when a reading of the two letters of 16 and 20 July 2001 makes it clear that the decision-maker did apprehend the two aspects of the request and did determine that the application of Mr Abraham, including the determination not to grant further legal assistance for him to pursue a claim in Japan for custody of his daughter. 16 The respondent very properly has taken no point that the named respondent in the proceeding is "Attorney Genral Ligal Aid and Family Service Canberra" [sic]. It has, however, objected to the competency of the proceeding. The notice of objection to competency asserts that the court as no jurisdiction to hear the application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) on the grounds that the Scheme is not one established under an enactment, so that the decision complained of is not a decision made under an enactment and is not a decision to which the ADJR Act applies. It is also asserted that the Court otherwise does not have jurisdiction to hear the claim. 17 Mr Abraham, in response to an invitation from the Court to explain the basis upon which he was seeking the relief claimed in the application, filed a further affidavit sworn on 15 October 2001. Apart from repeating matters of history concerning his circumstances, that document identified the possible bases of the Court's jurisdiction to be s 13B (sic, s 39B) of the Jurisdiction (sic, Judiciary) Act 1903 (Cth) (the Judiciary Act), s 13 (sic, s 32) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), and negligence and administrative negligence. No reference was made to the ADJR Act. 18 I have reached the view that the Court has no jurisdiction to entertain this application. 19 The Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament: s 19(1), Federal Court Act. The decision which is sought to be reviewed is not one which, in my judgment, is one in respect of which the Court is vested with jurisdiction by any law of the Commonwealth Parliament. 20 The ADJR Act empowers the Court to review decisions to which it applies. For present purposes, such decisions are decisions of an administrative character made under an Act of the Commonwealth Parliament or under any rules regulations or bylaws made under such an Act: see s 3(1) of the ADJR Act. Although the decision in question may be said to be a decision of an administrative character, it is clearly not a decision under an enactment. To qualify under that description, the decision must be made in pursuance of or under the authority of an enactment: Australian National University v Burns (1982) 64 FLR 166. The Scheme does not exist by virtue of any enactment. It is established administratively only. Its guidelines are established administratively. It does not depend upon any statutory provision for its existence or its authority. There is no connection between decisions made under the Scheme and any legislative provision: cf Emanuele v Cahill (1987) 18 FCR 304 at 305 per Neaves J. No source of the authority to make decisions under the Scheme emanates from any statutory provision: cf Glasson v Parkes Rural Distributors Pty Ltd (1984) 155 CLR 234. The decision sought to be reviewed is one which is neither expressly authorised or required by any enactment, nor is it impliedly required by any enactment. The source of its authority is the general powers of administration of the Executive arm of government. 21 Section 39B(1A)(c) of the Judiciary Act confers jurisdiction on the Court in matters "arising under a law made by the Parliament". The Full Court (von Doussa, Branson and Sundberg JJ) addressed that provision in Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 441 - 443. In this matter the right or duty which Mr Abraham seeks to enforce is not one which owes its existence to any provision of an enactment. The basis of his claim is that he has an entitlement under the Scheme. But as I have noted, the Scheme itself has no statutory foundation, and such entitlement as Mr Abraham might have or might have had under the Scheme also does not arise in any sense from any statutory provision. Nor is there any other provision of s 39B of the Judiciary Act which appears to give the Court jurisdiction to hear the present application. I observe that Mr Abraham is securing a review of the decision made not to grant him benefits under the Scheme, and that he is not seeking any order by way of a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth so as to enliven s 39B(1) of the Judiciary Act. 22 Section 32 of the Federal Court Act grants what is sometimes called the accrued or pendent jurisdiction of the Court. I do not consider that it assists Mr Abraham in this matter. There is no other matter or matters in which the Court's jurisdiction is properly invoked with which the present claim might be said to be associated: see Philip Morris Inc. v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 170. No other legislative source of jurisdiction has been identified or relied upon by Mr Abraham. 23 The claims for "negligence" and "administrative negligence" are plainly misconceived. The references which Mr Abraham referred to in support of his claim concern the exercise of powers of a court to authorise the administration of interrogatories. That presupposes a matter in which the Court has jurisdiction. The Court has no general jurisdiction to entertain claims based upon alleged negligent conduct. Such claims, if within the Court's jurisdiction, must arise either by reason of some statutory grant of jurisdiction or be associated with some other part of a claim which is within the Court's jurisdiction. Those jurisdictional circumstances do not arise in this matter. 24 I add that I have seen the video recording and have listened to the tape recording provided by Mr Abraham, as well as having read carefully the other documents which he has submitted to the Court. Those materials do not address the jurisdiction of the Court, except to the extent that the affidavit to which I have referred asserted the bases of the Court's jurisdiction to entertain the present application. Save for that reference, I do not consider it necessary to refer in any detail to that other material. 25 For those reasons, in my judgment, the notice of objection to competency must be upheld and the application dismissed. I see no reason why the ordinary rule as to costs should not apply. I accordingly order that Mr Abraham pay to the respondent costs of the application to be taxed. As these reasons for judgment are published after the date upon which judgment was pronounced, I fix the date within which any appeal may be brought from this judgment to be within 28 days after the date of these reasons for judgment. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.