Blair v Jago [2000] FCA 1354

FEDERAL COURT OF AUSTRALIA

Blair v Jago [2000] FCA 1354

CITIZENSHIP – application for prerogative relief – declaration of Australian citizenship sought. Australian Citizenship Act 1948 (Cth) s 25 Australian Citizenship Regulations Reg 8

STEPHEN DORIAN BLAIR V B JAGO an officer of the DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS AND F HOWAT an officer of the AUSTRALIAN ELECTORAL COMMISSION N 232 OF 2000 JUDGE: BEAUMONT J DATE: 4 SEPTEMBER 2000 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 232 OF 2000

BETWEEN: STEPHEN DORIAN BLAIR

APPLICANT

AND: B JAGO an officer of the DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

F HOWAT an officer of the AUSTRALIAN ELECTORAL COMMISSION

SECOND RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 4 SEPTEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 232 OF 2000

BETWEEN: STEPHEN DORIAN BLAIR

APPLICANT

AND: B JAGO an officer of the DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

F HOWAT an officer of the AUSTRALIAN ELECTORAL COMMISSION

SECOND RESPONDENT

JUDGE: BEAUMONT J

DATE: 4 SEPTEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J: 1 The applicant, who has at all times been unrepresented, prepared and, on 17 March 2000, filed in the registry an application dated 19 February 2000. The application, which is not at all clearly expressed, purported to claim the following final relief: "1. Recovery of costs, [emotional] and mental stress, undue process, discrimination, failure to apply law as written legislated, etc. 2. Review of powers of DIMA & AEC to act arbitrarily and with [misfeasance] prejudicially with my claim and right to have my Australian citizenship recognised. Recovery of costs and damages including inflicting damage to my health & well being." 2 The application also claimed interlocutory relief in these terms: "1. Expenses incurred. Penalties. Punitive damages not less than $10,000 per respondent individually and departmentally. 2. Immediate Australian citizenship. Recognition and settlement of damages." 3 In support of the application the applicant filed an affidavit sworn by him on 16 March 2000 which purported to state the following: "1. I meet all criteria of Australian citizenship – which has been stripped from me by the illegal acts of the respondents – and their misuse of their position and not the applicable laws past and present. Costs and punitive damages and relief sought and recovery are fair and just but not limited to relief sought. I ask, due to health and need to travel internationally immediately, relief and direction from the court a ruling as: (1) I need medical treatment. (2) I wish to see my father before he dies - expected any time. (3) Re-entry to Australia as a citizen or I cannot leave until citizenship - immigration status is made clear and relief is granted, punitive and administratively. Items(1) and (2) require international travel ASAP. (4) Documents including depositions copies of birth certificates registration of Aust citizenship listing me as previous issue (Mark Blair cert) included." 4 There then is annexed to the affidavit a considerable volume of documentation. I will not attempt to summarise it. Some of it I will need to refer to later, but the documents include extracts from registers of births, correspondence with the Australian Electoral Commission and with the Department of Immigration and Multicultural Affairs ("the Department") together with correspondence with the Administrative Appeals Tribunal ("the Tribunal"). That material is annexed to the affidavit in no particular logical or chronological sequence and is not readily understood. However, the solicitor for the respondents, in her written submissions, dated 25 May 2000, has helpfully annexed what appear to be the relevant documents in both a chronological and logical sequence and it will suffice, for present purposes, if I summarise that material as follows. 5 The applicant submitted an enrolment form to the Australian Electoral Commission ("the AEC") on 9 July 1999 seeking to be placed on the electoral role. However, he did not indicate on that form that he was an Australian citizen. The document stated a residential address in Sydney and that the applicant had been born on 1 August 1947 in the United Kingdom. By letter to the applicant, dated 21 July 1999, the AEC acknowledged receipt of the enrolment form but the AEC Divisional Returning Officer stated that she was unable to determine the applicant's citizen eligibility for enrolment from the information included on the form. The letter accordingly asked the applicant to complete an enclosed questionnaire and to return it. 6 The applicant did complete the questionnaire and signed it on 22 July 1999. In that document he again stated that he had been born in the United Kingdom on 1 August 1947. He asserted that he became an Australian citizen at birth. He said that he had an Australian father and a Canadian mother. He went on to state that he had arrived in Australia in 1957; that he had entered Australia at various times during the 1980s; that he had an Australian passport; that an Australian passport had been issued to him on five previous occasions from diplomatic missions in New York, Chicago and Los Angeles; and that passports had also been issued to him in Australia. He gave numbers of several of those passports, including one issued in Chicago, two issued in Sydney and one issued in San Francisco over a period between 1972 and 1988. 7 It appears that, by virtue of the provisions of the Australian Citizenship Act 1948 (Cth) which was then in force, if the applicant was born in the United Kingdom before 26 January 1949 to an Australian father and if he had entered Australia between 26 January 1949 and 5 May 1966 on an unrestricted basis, that is to say, as a permanent resident, the applicant would have become an Australian citizen on the date of such arrival. This is by virtue of the transitional provisions of the Australian Citizenship Act then in force, specifically s 25. It further appears that if he arrived in Australia between 6 May 1966 and 30 April 1987 on an unrestricted basis and was a British subject on arrival, he would have become an Australian citizen on the date of entry. 8 I have deliberately used the language of "it appears that the position is" because, as I have mentioned, the applicant has at all times been unrepresented. Accordingly, the statement that I have made as to the legal position is expressed cautiously. That is to say, I am prepared, for the moment, to accept these submissions advanced on behalf of the respondents that the legal position is that I have stated it appears to be. That is certainly their submission. However, as will appear, I propose to dismiss the present application for discretionary reasons and for those reasons alone the application must fail. 9 In the absence of legal representation on both sides of the record it is not appropriate that I even endeavour to express an opinion on the matters sought to be agitated by the applicant. Clearly those matters could have a general application and in the absence of proper legal argument from both sides, I do not think it is in anybody's interests that I endeavour to express any opinion on the legal questions that may otherwise have arisen. 10 The next event in the sequence of events is that by letter dated 6 August 1999 the Electoral Commission's then Divisional Returning Officer wrote to the applicant stating that his application for enrolment had been rejected as the officer was not satisfied that the applicant was an Australian citizen or a British subject who was enrolled on the Commonwealth of Australia Electoral Roll on 25 January 1984. 11 By letter dated 11 August 1999 the applicant wrote back to the AEC Divisional Returning Officer informing her that the applicant wished to have the matter referred for internal review. By letter dated 13 September 1999 the second respondent, Frances Howat, the Australian Electoral Officer for New South Wales, wrote to the applicant as follows: "I refer to your request for a review of the decision by the Divisional Returning Officer for North Sydney to reject your claim for enrolment. In summary, applicants for Commonwealth and New South Wales electoral enrolment must · be 18 years of age or older · be an Australian citizen or a British subject who was on a Commonwealth of Australia electoral roll on 25 January 1984, and · have lived at their present address for at least the last month. The Commission is not satisfied, on the evidence that you have submitted previously, that you are an Australian citizen. To verify your claim for electoral enrolment, you will need to provide the Commission with a certificate of evidence of Australian citizenship, obtainable from the Department of Immigration and Multicultural Affairs. In addition, the Commission has no record of you being enrolled on a Commonwealth electoral roll on 25 January 1984, either in New South Wales or any other State or Territory. As you have not provided evidence of Australian citizenship, and are not a British subject who was on a Commonwealth of Australia electoral roll on 25 January 1984, I have no alternative but to uphold the decision of the Divisional Officer for North Sydney to reject your claim for enrolment. If you are not satisfied with this decision you are entitled to appeal to the Administrative Appeals Tribunal for review of this decision under the Administrative Appeals Tribunal Act 1975. For information on your citizenship status, the Department of Immigration and Multicultural Affairs can be contacted at PO Box 9984 Sydney NSW 2001, or on their Citizenship Inquiry Line 13 18 00." 12 The applicant then sought review of Ms Howat's decision by the Tribunal pursuant to Part X of the Commonwealth Electoral Act 1918 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth). That application was sent by the AEC to the Tribunal on 23 September 1999. The matter was listed for hearing on 1 June 2000. Prior to the hearing the Tribunal's conference registrar raised the question whether the Department could be requested to provide evidence which could assist in the determination of the applicant's citizenship. 13 A letter was forwarded by the AEC to the Department, dated 1 December 1999, seeking the Department's assistance in obtaining a certificate of evidence of Australian citizenship on behalf of the applicant; and requesting personal details. The letter was addressed to Mr Brian Jago, Assistant Manager of Citizenship, who is the first respondent in this proceeding. By facsimile message dated 7 December 1999 Mr Jago communicated back to Ms Howat on the matter as follows: "Your fax of 1 December 1999 concerning Mr Stephen Dorian BLAIR, DoB 1 August 1947, refers. I cannot respond to your enquiry as it comes under the Privacy provisions. You will need to justify your request through an Act of the AEC which allows this information to be obtained from this Department, and then sent to our FOI section in this office. Alternatively, Mr Blair should contact our Citizenship Enquiry Line on 131 880 to find out about his Australian citizenship. Mr Blair's status is unclear as to whether he is an Australian citizen and more information is needed from him before this can be determined. Evidence of Australian citizenship is not obtained from an Australian passport but from a certificate of Australian citizenship issued by this Department. My apologies for the delay in this matter, however, I was away for several days from the day it was faxed through." 14 During the course of the hearing before me I was informed that the applicant is yet to make an application for a certificate of evidence of Australian citizenship through the Department. I understand that the making of such an application would require the payment of a prescribed fee. I will return to this aspect. 15 Included in the material annexed to the affidavit of the applicant and annexed to the respondents' written submissions are details of a number of Australian passports to which reference has already been made. For present purposes, it is sufficient to note that all of the passports that have been produced were issued prior to amendments made to the Passports Act 1938 in November 1984. It appears that prior to that date it was not a necessary requirement that a person be an Australian citizen in order to have a passport issued. Again, I have deliberately used the words "it appears" for the reason previously mentioned. 16 On behalf of the respondents my attention has been drawn to the entitlement of the status of the respondents in the form of application filed. It is certainly true that neither the Department nor the Commission are legal entities and this may of course create procedural problems. However, the applicant has named Mr Jago and Ms Howat as respondents and I will proceed for the moment on the footing that no point should be taken against an unrepresented applicant on this account. There are other difficulties, of course, with the form of the application and the affidavit to which I have previously made reference, and it is not at all clear what relief the applicant is seeking from this Court, but for the moment I pass by those difficulties. 17 I should mention, however, a specific objection taken on behalf of the respondents and that is their objection to competency. It is put, and strongly put, on behalf of the respondents that there is no jurisdictional basis upon which the present matter can be entertained by this Court. Again, it is true that the nature of the relief claimed is not at all clearly expressed. Other matters are pointed to in the respondents' written submissions at pars 12 – 17. 18 As I have said, there is some force in those submissions. However, I think it is possible, if only just possible, to discern in the application and the affidavit a claim for a declaration as to the status of the applicant as an Australian citizen. Now, whether this results in there being a "matter" between the parties for determination in the constitutional sense, may be an arguable issue. There is, as I have said, certainly force in what the respondents says on this score. 19 However, since I have come to the view that for discretionary reasons the application should be dismissed, I prefer not to construe many of the claims made by the applicant in his application too literally. I would add that there certainly are live issues of contention of one kind or another between the parties before the Court. 20 On behalf of the respondents it is further submitted that the application should be dismissed on discretionary grounds. For the moment I am prepared to assume, in the applicant's favour, that he is seeking declaratory relief as to his citizenship status, coupled with an application for a prerogative writ in the form of mandamus that the matter be considered by the executive arm of government in accordance with law. Although there may be jurisdiction to entertain such a matter, it does appear that there is a procedure available to the applicant under the Australian Citizenship Act and the Regulations. Indeed, the applicant does not seriously contest this proposition, which I am prepared to accept as valid for all present purposes. 21 Under Reg 8 of the Australian Citizenship Regulations "[a] person who is an Australian Citizen and makes an application in the approved form and pays the prescribed fee of $55 must be issued with a declaratory certificate of citizenship". Reference was also made on behalf of the respondents to s 31 of the Australian Citizenship Act in this connection. The blunt fact is that the applicant has not availed himself of this procedure although he is well aware of it. 22 The matter has come forward in this Court on the footing that the applicant is exempt from filing fees. It became quite clear to me, in the course of argument, that the reason why the applicant was here and not in the other quite appropriate forum provided under Reg 8 is that the other forum requires the payment of a prescribed fee of $55. It is the required payment of that fee that has generated the litigation in this Court. 23 In my opinion, it is an abuse of the process of the Court to invoke it for that purpose. In any event, this being in substance an application for prerogative relief of the kind I mentioned, such a remedy is clearly discretionary and it is, of course, settled beyond question that the availability of an appropriate alternative remedy is a good reason for refusing to grant discretionary prerogative relief. 24 I agree entirely with the submissions of the respondents that, in essence, the applicant is seeking to ventilate the issue of recognition of his Australian citizenship in these proceedings as he does not believe he should have to pay a prescribed fee to obtain the documentary evidence which he could then produce as evidence of his citizenship to other agencies. In those circumstances, the Court in its discretion should refuse the relief sought. 25 For completeness I should add, as I have previously foreshadowed, that so far as the other claims for different relief have been adumbrated in the applicant's application, in particular the claims for damages, nothing before me discloses that any recognisable form of action could conceivably be available. It is true, of course, that there is a tort of misfeasance in public office. The ingredients of that cause of action are not at all evident in any of the material before the Court. On the contrary, the evidence is clear that the officers concerned, and the respondents in particular, have acted with utmost courtesy and honesty and in a spirit of co-operation at all times. Any suggestion to the contrary is utterly without foundation and any attempt to agitate such a claim should be dismissed and will be dismissed as, again, an abuse of process. 26 For those reasons the application is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.