Hu v Migration Agents Registration Authority

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate refusing review of two decisions purportedly made by the Migration Agents Registration Authority ("MARA"). The Federal Magistrate disposed of the proceedings summarily on the ground that neither of the two challenged decisions was a "decision" for the purposes of ss 3 and 5 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) (the "AD(JR) Act"). Because the matter was decided on a summary basis, the decision was interlocutory: see Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an "appeal shall not be brought from… an interlocutory judgment unless the Court or a Judge gives leave to appeal". As a consequence, an appeal would, generally, lie only by leave: see O 52, rr 2A-9 of the Federal Court Rules. However MARA has indicated that it is willing to proceed upon the basis that the notice of appeal constitutes an application for leave to appeal. I proceed accordingly. 2 I consider that the Federal Magistrate correctly disposed of the matter in accordance with law. For that reason my reasons will be short and based largely upon the approach which he took to the case. 3 The facts appear from the earlier paragraphs of his Honour's reasons. At some time prior to April 2008, the applicant retained the services of a migration agent for the purpose of seeking a skilled independent overseas student (subclass 880) visa. He has subsequently been granted such a visa. However he is dissatisfied with some aspects of the conduct of the migration agent. It is not clear whether the matter causing concern in some way impeded or caused difficulty in the grant of the visa. It is not necessary for present purposes that I consider that matter. On 21 April 2008, the applicant lodged a complaint with MARA regarding aspects of the agent's conduct. On 9 September 2008, Mr Campbell, a senior professional conduct officer of MARA, wrote to the applicant outlining his investigation of the complaint and indicating that: 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 There has been no direct challenge to that decision. However the present proceedings involve requests by the applicant for the investigation to be reopened. 5 MARA's investigation of the complaint appears to have been pursuant to section 316(1)(c) of the Migration Act 1958 (Cth) (the "Migration Act") which confers upon MARA the function of investigating complaints in relation to the provision of immigration assistance by registered migration agents. Pursuant to s 317, MARA has power to do all things "necessarily or conveniently to be done for, or in connection with, the performance of its functions". Pursuant to s 318 there is power to refer to mediation. However there is no power to order any form of restitution or damages. 6 Other provisions of the Migration Act deal with the disciplinary function of MARA. They do not include the making of any form of compensatory order. Thus, for present purposes, all that could have happened, had MARA concluded that the subject matter of the complaint was made out, was either engagement of the disciplinary powers, or a referral to mediation pursuant to s 318. In the former case, the disciplinary process could not have yielded any benefit to the applicant. In the latter case, he would also have gained no real benefit. Following Mr Campbell's letter of 9 September 2008, correspondence was exchanged between the applicant and Mr Campbell and other employees of MARA in which the applicant sought to persuade MARA further to investigate his complaint. It declined to do so. On 19 June 2009, the executive officer of MARA wrote to the applicant, asserting: 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. 7 Notwithstanding this letter, the applicant continued to correspond with MARA. On either 27 or 28 July 2009, Mr Colin Lindsay wrote to the applicant, observing: Please note that the Office of the MARA will only re-open former complaints where new evidence is presented, as stated in your email below and also confirmed in the letter sent to you on 7 April 2009, by Ms Paula Williams on behalf of the Minister. Evidence includes some level of proof of allegations being made against another person. It is noted that neither of your emails of 20 July 2009 or 22 July 2009, contain evidence in relation to the allegations you have presented. I will address your claims briefly below. 8 The letter then deals with various matters of complaint and concludes: In terms of your email of 23 July 2009, attached below, you have not presented any new evidence to substantiate your claims. You have reiterated your earlier claims of 20 July and added information relating to the internal processes of the Office of the MARA. On this basis the complaint will not be re-opened. 9 On 6 or 7 August 2009 Mr Lindsay again wrote to the applicant, apparently in response to a further email dated 6 August 2009. The letter, although in different terms, was to much the same effect as the earlier letter. It is not necessary for present purposes that I set it out. It is common ground that the decisions evidenced by these letters not to act upon the applicant's further complaints constitute the subject matter of the application for review with which the Federal Magistrate was concerned. 10 In his reasons the Federal Magistrate referred to letters from Mr Campbell. However, it is quite clear that in his consideration of the matter he dealt with the issues raised in the letters of 28 July and 7 August to which I have referred. The reference to Mr Campbell appears to be a typographical error, or perhaps an assumption made as to the identity of the drafter of the letters. The former is the more likely explanation. I mention this in view of the fact that the applicant submits that the Federal Magistrate in fact considered the wrong decisions, Mr Campbell having been the original decision maker, but not, apparently, the decision-maker who declined to reopen the investigation. I am satisfied that that error, whatever its cause, was of no significance, particularly given the basis upon which the Federal Magistrate disposed of the matter. This aspect is one of the two substantive grounds of appeal raised by the applicant in his purported notice of appeal. The other ground is difficult to understand. It is that the Federal Magistrate: [T]reated different approaches to the appellant and respondents in the Federal Magistrates Court proceeding, infringed the appellant's legal right in the Court proceeding. 11 I gather from what the applicant has said to me, and from his written submissions that the thrust of this assertion is that the matter was listed for directions or, perhaps, hearing on 2 October 2009. For some reason, MARA was not able to proceed on that day and so the matter was adjourned. It seems that the applicant must have sought to obtain judgment against it, perhaps in default of its being ready to proceed. The Federal Magistrate decided that he would not proceed in that way. 12 When the matter came on for hearing on 20 November 2009, the matter was disposed of summarily on the ground that there was no relevant decision capable of review pursuant to the AD(JR) Act. The Federal Magistrate held that the relevant decisions were of a procedural, rather than a substantive nature, in the sense in which those terms are used in Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321. Put another way, the Federal Magistrate held that if the decisions were made pursuant to the provisions of an enactment, then they did not relevantly affect legal rights or obligations, and so failed the test prescribed by the majority of the High Court in Griffith University v Tang (2005) 221 CLR 99 at [89]. 13 The applicant has repeatedly asserted that he was treated differently from the respondent. His major complaint seems to be that he has not had the opportunity to lead evidence as to the documents evidencing misconduct by the migration agent which were in the possession of MARA. I have tried to explain to him that the decision of the Federal Magistrate did not depend upon either the conduct of MARA or the conduct of the migration agent, but rather upon the nature of the decision which MARA was called upon to make with respect to his requests for a reopening of the relevant inquiry. I was unsuccessful in my attempts. 14 It is now appropriate that I discuss the decision in a little more detail. The Federal Magistrate referred to the terms "decision to which this Act applies" in ss 3(1) and 5(1) of the AD(JR) Act, and the term "a person aggrieved by a decision" as defined in s 3(4) of the same Act. I do not propose to set out the definitions in these reasons. It seems that MARA argued that each of the two decisions was not a decision as that term has been judicially explained, and was not made under an enactment. Reference was made to the decision in Bond. That decision provides that a reviewable decision will generally, but not always, be a decision required by, or authorised by a statute, which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. Further, it is an essential quality of a reviewable decision that it be substantive rather than procedural. As much appears from the reasons of Mason CJ at 337, with which reasons Brennan and Deane JJ appear to have agreed. To my mind the Federal Magistrate was correct in that conclusion. Clearly, a decision not to revisit an earlier decision is no more a substantive determination than is an interlocutory order made in the course of the conduct of proceedings leading up to a substantive determination. 15 The Federal Magistrate then considered the operation of the decision in Griffith University v Tang to which I have referred. At [89] the majority there 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 authorized 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 emphasized 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 authorizes 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. 16 In the present case re-opening of the inquiry could only lead to further consideration of the conduct in question pursuant to s 316 of the Migration Act. The only outcome would be, at most, a reference to mediation or a decision to take disciplinary proceedings. In neither case would any benefit accrue to the applicant. It seems to me, then, that the decision was not one which could, in any sense, affect or alter existing rights or obligations, or create new rights or obligations. It also seems to me that as a matter of standing, it is very difficult for the applicant to demonstrate that he is a person aggrieved by any decision. 17 In the course of proceedings today, the applicant has asserted some sort of collateral benefit to the effect that he may have been able to obtain access to a document, perhaps a contract between him and the migration agent. However that document is already available to him. In any event, I do not accept that such collateral benefit is a benefit or right of the kind contemplated either for the purpose of determining whether there is a decision to which the Act applies, or for the purpose of determining the applicant's standing as an applicant for judicial review. 18 In the course of submissions I have ventilated with the applicant various matters which he seeks to raise concerning the conduct of the migration agent. I have come to the tentative view that there is absolutely nothing in any of the grounds that he wishes to raise. It may well be that he had a genuine complaint about such conduct. However I cannot see that the process which he has chosen in order to seek vindication of his complaints is capable of producing that result. In particular, he appears to focus upon an allegation that documents were forged. This appears to be based partly upon an assertion, which he may or may not have sworn to, that particular documents which the migration agent claims were forwarded to the applicant were not so forwarded. 19 Another complaint seems to be that a certification that a document is a true copy, apparently made by a Justice of the Peace, was not made by a Justice of the Peace, or was not made correctly by a Justice of the Peace. It is said that the form of certification used reflects the wording recommended for use by migration agents rather than the form recommended in guidelines provided to Justices of the Peace in New South Wales. I am unable to see how an inference as to forgery could be drawn from those factors. Although the case is, no doubt, much more complicated from the applicant's point of view, for present purposes the only question is whether or not judicial review is available pursuant to the AD(JR) Act. For the reasons which I have given, which are the same as those advanced by the Federal Magistrate, I conclude that such review is not available in this case. Leave to appeal should be refused. 20 The respondent applies for the costs of these proceedings, treated as an application for leave to appeal. The applicant resists that application, largely by reference to MARA's conduct prior to proceedings in the Federal Magistrates Court and by reference to the error in referring to the letters from Mr Lindsay as having come from Mr Campbell. As to the first matter, I consider that conduct since the Federal Magistrate's decision on 22 January 2010 is primarily relevant to the question of costs. As to the error, it cannot be said that it was, in any sense, caused or contributed to by the respondent. It provides no basis for exercising the discretion as to costs other than in favour of the respondent. In my view, it was perfectly clear from his reasons that the Federal Magistrate had identified the correct decisions, and that the references to Mr Campbell were inconsequential and inadvertent. 21 I concede that the applicant may be at something of a disadvantage in understanding written English reasons. However, in my view, and having had an opportunity to observe his command of English, I find it difficult to accept that he would not have understood that the reference to Mr Campbell was an oversight, and not evidence of a misunderstanding as to the decisions of which he sought review. I order that the applicant pay the respondent's costs of the proceedings. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.