Ogawa v Minister for Immigration and Multicultural Affairs and Anor

Ogawa v Minister for Immigration and Multicultural Affairs and Anor - [2006] FCA 1694 - FCA 2006 case summary — Zoe

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History of Litigation 3 To understand the nature of Ms Ogawa's grounds of appeal, the Court sets out the salient facts surrounding Ms Ogawa's background. They are set out in the judgment of the Court delivered on 13 November 2006 (see Ogawa v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 1501) but for convenience are repeated here in the following nine paragraphs. 4 Ms Ogawa arrived in Australia, having been issued with a Student visa. On 29 September 2003 such visa was cancelled pursuant to s 116(1)(b) of the Act. But for this cancellation, the Student visa would have expired on 15 March 2004. 5 Ms Ogawa appealed the decision to cancel her Student visa. On 9 June 2004 the Tribunal made a decision to set aside the decision of the delegate on the ground that it was not satisfied that Ms Ogawa had breached condition 8202 of her Student visa. However, because the Tribunal's decision was delivered after the expiration of the visa, the decision had no effect. 6 On 30 June 2004 Ms Ogawa lodged an application for judicial review to the Federal Court of Australia of the Tribunal's decision of 9 June 2004. Apparently she considered there was some merit in doing so, even though the decision of the Tribunal was substantively in her favour. 7 On 6 July 2004, Ms Ogawa was granted a Bridging E class visa, subclass 050, on the basis that she had applied for judicial review of a decision relating to a substantive visa. Pursuant to the Migration Regulations 1994 ('the Regulations') clause 050.512, such visa is valid for a period of 28 days after the judicial review proceedings are completed. 8 On 23 July 2004 the Federal Court dismissed Ms Ogawa's application for judicial review. Ms Ogawa then sought leave to appeal to the Full Federal Court against such decision, but on 26 November 2004 the Full Court refused her application for leave to appeal. 9 Ms Ogawa then filed an application on 22 December 2004 in the High Court of Australia against the decision of the Full Federal Court to refuse leave to appeal. However on 20 January 2005 such application was deemed to be abandoned pursuant to Rule 41.10.4 of the High Court Rules 2004. Such rule provides: 'Where an unrepresented applicant does not file a written case and a draft notice of appeal within 28 days of the filing of the application, the application shall be deemed to be abandoned, unless, either before or after the expiration of that period, the Court or a Justice has otherwise ordered or directed.'

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Submission of Ms Ogawa 19 Ms Ogawa submits that in consequence of Callinan J's orders, her application for special leave has never been abandoned and that the deeming effect of Rule 41.10.4 of the High Court Rules has no application. She claims that in consequence of this recent development, her Bridging visa issued on 6 July 2004 remains in force and has never expired. 20 Ms Ogawa submits alternatively that irrespective of His Honour's decision, her Bridging visa has not expired. Ms Ogawa maintains she never abandoned her special leave application to the High Court and that the presumption contained in the High Court Rules is rebutted. On this basis she claims that the Bridging visa issued to her on 6 July 2004 remains current. She claims that in consequence she was not an unlawful non-citizen within the meaning of s 189 of the Act. 21 In its decision made on 5 June 2006 the Tribunal noted that following the deemed abandonment of Ms Ogawa's High Court proceedings, she instituted proceedings in the Federal Court for a review of the decision of the Registrar of the High Court to refuse to allow her to file her documents. Such application came before Finkelstein J who heard the matter on 16 September 2005 and those proceedings were adjourned. The Tribunal concluded that such proceedings were purely interlocutory and did not constitute an application for judicial review in relation to a decision to refuse to grant a visa. Accordingly, it determined that there was no merits review or judicial review proceedings currently before it. 22 Ms Ogawa submits that Scarlett FM erred by being distracted by an irrelevant question, namely whether or not the Federal Court proceedings before Finkelstein J were interlocutory. She claims that Scarlett FM should have considered whether she had abandoned her judicial review proceeding. She also claims that the notification of the Registrar of the High Court was treated by Scarlett FM as a decision of the High Court to dismiss her judicial review proceeding.

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37 Ms Ogawa has maintained that she did not receive this message and was unaware that such communication was made. The Tribunal said that it was 'unable to place weight on the fact that the applicant alleges she was not aware that her request for Ministerial Intervention had been withdrawn.' The Tribunal held that it was not concerned with the question whether or not the request was correctly or incorrectly withdrawn. Rather, the question was whether the application was being assessed against the Minister's Guidelines. 38 The making of such an application is significant. All applicants for a Bridging E class visa, Subclass 050 (general), are required to comply with the primary criteria set out in Part 050 of Schedule 2 of the Regulations. The criteria for the grant of such visa may be met if, inter alia, the Tribunal is satisfied that the applicant has an outstanding request to the Minister under s 351 (see Schedule 2 050.212(6)). 39 Ms Ogawa submits that both Scarlett FM and the Tribunal erred in their approach to the phrase 'is being assessed by an officer' as contained in the Regulations, and submits that the words 'being assessed by an officer' was treated by them as meaning that there was no assessment then in progress. She submits that the words 'being assessed' are matters of fact and degree and that if there has been a misapprehension of the meaning of the phrase, it constitutes an error of law. She refers to the decision of Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 per Gummow J at 519. 40 Ms Ogawa claims that in order to determine whether or not her Ministerial Intervention request 'was being assessed', it was 'necessary for the Tribunal to take into account the reasons why an officer did not take action in respect of the appellant's Ministerial Intervention Request'. She says that if the officer did not take action in respect of a Ministerial Intervention Request for illegitimate reasons, the Minister cannot rely upon 'the time when the officer did not take action'. She refers to Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116 at para 29. 41 Ms Ogawa thereafter refers to the observations made by Scarlett FM of the MIU and of his observation that the 'Department acted wrongly' in withdrawing Ms Ogawa's request. She therefore claims that the Tribunal erred in law. 42 Further, she claims that an officer of the Department has no power or authority to withdraw her request for Ministerial intervention and the purported withdrawal was in itself an error of law. Ms Ogawa made other submissions which appear to be based on findings that were not made by Scarlett FM. However, for the purpose of this appeal the Court is satisfied that these reasons deal with her arguable submissions.

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Finding relating to s 351 application 43 Ms Ogawa's references to Scargill and Gauthiez do not relate to the issue before the Tribunal and Scarlett FM. Those cases considered whether an applicant could take advantage of his or her unlawful activities under immigration law to establish usual residence in Australia. They are not analogous to the present circumstances. 44 I am unable to find any error in the conclusion drawn by Scarlett FM that at the time the application was made there was no request under s 351 then being assessed by an officer. It does not follow that merely because an application had been made under s 351 by Ms Ogawa it was 'being assessed'. On the basis of Ms Ogawa's request, her application was not being assessed. She had not requested that her application be withdrawn. However the fact is no assessment was occurring at the relevant time. Whether the withdrawal was authorised is not a matter requiring determination. The incontestable fact is that at the relevant date, no application under s 351 was being assessed as provided for by Regulation 050.212(6)(b)(i)B of the Regulations. 45 With regard to the claim by Ms Ogawa that only the Minister can exercise power under s 351 of the Act, s 351(3) provides: 'The power under subsection (1) may only be exercised by the Minister personally'. By s 351(1) the Minister is empowered to substitute a decision of the Tribunal for a decision which is more favourable to an applicant. Scarlett FM observed that pursuant to s 351(7) of the Act the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether requested to do so by an applicant or by any other person, or in any other circumstances. The High Court has determined that in analogous circumstances prerogative writs cannot operate to compel the Minster to act: see Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte applicants S134/2002 [2003] 211 CLR 441 at 48. 46 It follows that there is no error in the decision of the Federal Magistrate relating to the application under s 351 of the Act. 47 For the above reasons, the appeal must be dismissed. In doing so however, the Court makes the following observations.

At a glance

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Judgment (33 paragraphs)

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