Ogawa v Minister for Immigration and Multicultural Affairs and Anor

(iv) holding that subclause 050.212(6) requires that the Appellant's request was being in fact actively considered and processed by an officer of the Department as opposed to being before an officer for processing.

(v) failing to hold that power under s.351 of the Migration Act 1958 cannot be exercised by an officer of the Department of Immigration.'

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.'

10 As a result of the deemed abandonment of the High Court leave application, Ms Ogawa's Bridging visa expired 28 days thereafter on 17 February 2005. On 19 May 2006 Ms Ogawa was detained in immigration detention pursuant to s 189 of the Act and she made an application for the Bridging visa but it was refused on that same day. 11 Thereafter Ms Ogawa sought review in the Tribunal from the refusal of the Minister to grant a Bridging visa. The Tribunal rejected her application and she sought judicial review in the Federal Magistrates Court. Scarlett FM determined her appeal on 21 July 2006. It is this judgment which is the subject of the current appeal to this Court. 12 A directions hearing was fixed for 22 August 2006 in respect of this appeal. The hearing was arranged by video conference as Ms Ogawa was in Queensland. Despite the fact that the Court had made arrangements with her for that hearing, she did not attend. In consequence her appeal was dismissed. On 13 November 2006, upon her application, the Court reinstated her appeal.

Findings relating to Visa 13 Scarlett FM noted that the delegate of the Minister cancelled Ms Ogawa's Student visa pursuant to s 116(1)(b) of the Act on 29 September 2003 and that her subsequent appeal to the Tribunal was successful. 14 Before Scarlett FM Ms Ogawa claimed that the Bridging E class visa granted to her on 6 July 2004 remained in effect. 15 His Honour held that the Bridging E class visa had expired on 17 February 2005, as found by the Tribunal, in consequence of the deemed abandonment of Ms Ogawa's High Court application for special leave to appeal to the High Court. His Honour said: 'It should be made clear that a Bridging visa of the type held by the Applicant was one which remained in force until the completion of migration proceedings or judicial review proceedings, including proceedings on appeal, are completed and 28 days thereafter. It follows that if an applicant's application or appeal is finalised, whether successfully or not, at 28 days thereafter the visa will cease.'

Findings relating to s 351 request 16 Having dealt with the issue of the Bridging visa, His Honour then proceeded to consider Ms Ogawa's claim that the Tribunal erred in holding that there was no application being considered by the Minister for intervention when she made her application for a Bridging E class visa. 17 His Honour held that the Tribunal made no error in its finding that Ms Ogawa had no application that was being assessed by an officer against the Ministerial guidelines. However, he observed that Ms Ogawa did not request her application to be withdrawn.

Orders of Callinan J 18 Since the determination before Scarlett FM, Ms Ogawa made application to the High Court to reinstate her application for special leave to appeal to that Court. Such application was heard by Callinan J on 27 October 2006. Whilst the orders of the Court made on that day have not been tendered, I have been provided with a copy of the transcript. It records His Honour saying: 'Then I will order that the application for special leave to appeal shall not be deemed to have been abandoned and should be regarded as having been reinstated. I will further order that the written case contained in the material filed by the applicant be regarded and treated as having been filed within time.'

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.

Review of Federal Magistrate's Decision 23 The role of the Court in an appeal such as this is to determine whether the Federal Magistrate erred: see SZAJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 782. The Court is confined to a consideration of the issues before Scarlett FM. These issues are whether the appellant was entitled to a Bridging visa on 19 May 2006, and whether there was an application being considered by the Minister under s 351 of the Act. 24 The conclusion reached by His Honour relating to the expiration of Ms Ogawa's Bridging visa is not dependent upon any letter of the Registrar of the High Court as constituting a 'decision' as Ms Ogawa has submitted. Although Scarlett FM refers to the letter of the Registrar as a decision by the High Court, it is clear that His Honour's conclusion arises from a construction of Rule 41.10.4 of the High Court Rules 2004, which deems an application for special leave to be abandoned irrespective of any notification by the Registrar. Further, in answer to Ms Ogawa's submission that the abandonment pursuant to Rule 41.10.4 'is nothing more than a presumption', the effect of the rule is clear. It provides that, where an unrepresented applicant does not provide a written case and draft Notice of Appeal within the 28 day period, the application is deemed to be abandoned. In R v. Governor of Brixton Prison. Ex parte Soblen [1963] 2 QB 243 at 315 Pearson L.J said: 'The word " deems " normally means only " is of opinion " or " considers ", or at most " decides ", and there is no implication of steps to be taken before the opinion is formed or the decision is taken.'

25 Ms Ogawa claims that there is abundant evidence that she never abandoned her judicial review proceedings, of which the application for special leave to the High Court comprised a part, and that the orders of Callinan J acknowledge this fact. Unfortunately for Ms Ogawa the events subsequent to the decision of Scarlett FM do not impact upon his findings, and it is those findings only with which this Court is concerned. 26 Ms Ogawa refers to an unreported decision in the Supreme Court of Victoria in Ogawa v VCAT which she claims determined that an appeal should be regarded as being instituted at a time when an appellant presented an appeal document to the Court registry. No judgment citing such proposition has been provided, and it appears that no written judgment to such effect exists. Regardless of these circumstances, the Court concludes that there was no error by Scarlett FM in making his finding that Ms Ogawa's Bridging visa expired on 17 February 2005 by virtue of Rule 41.10.4 of the High Court Rules. 27 It follows that as at 19 May 2006 Ms Ogawa did not hold a Bridging visa and was accordingly an unlawful non-citizen.

Section 351 Application 28 The question at issue is whether the advice of the MIU results in the conclusion that at the date of Ms Ogawa's application for a Bridging visa on 19 May 2006 there was an application being assessed by the Minister, or whether in light of the advice given, Ms Ogawa was not then 'being assessed' by an officer against the Minister's guidelines as required by Regulation 050.212(6)(b)(i) of the Regulations. 29 Section 351(1) relevantly provides: 'If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.'

30 Ms Ogawa made her request to the Minister pursuant to s 351 of the Act by letter dated 22 June 2004. On 20 July 2004 the Minister's delegate of the Ministerial Intervention Unit ('MIU') responded stating inter alia: 'Although Senator Vanstone has power to consider intervening in your case, it would be inappropriate for her to do so while it is still to be considered by the Federal Court.

31 The letter impliedly indicated that Ms Ogawa's request would be deferred. 32 By undated letter written sometime after 15 June 2005 the Minister (via the MIU) informed Ms Ogawa that it was understood that her litigation against the Department of Immigration and Multicultural Affairs had ceased. The letter relevantly states: 'Therefore, given that you no longer have any court proceedings against the department it is now appropriate for the Minister to consider your request under section 351 of the Act.'

The letter invited her to make submissions within 35 days and stated: 'You may now be eligible for a Bridging Visa E in respect of your section 351 request. You should contact the nearest DIMIA compliance section in this regard.'

33 By letter from the Minister dated 17 June 2005 (but not written from the MIU) Ms Ogawa was notified that the Bridging visa granted in Brisbane on 6 July 2004 ceased on 17 February 2005 and that she was therefore an unlawful non-citizen. The letter further advised her that she may be eligible for a Bridging E visa. 34 By email addressed to the MIU and sent on 28 September 2005, Ms Ogawa advised: 'The High Court registrars will not oppose my application in the Federal Court. In the circumstance, there will be no obstacle to file my summons in the High Court in the matter relating to the cancellation of my student visa.

Could you please confirm in writing that the consideration by the Minister will be deferred until the conclusin [sic] of my migration proceedings.'

35 By email sent at 10.05 am and dated 30 September 2005 the MIU advised Ms Ogawa that the information she had provided would be taken into consideration and that a formal advice would be provided to her shortly. 36 On the same day at 4.03 pm Ms Ogawa inquired further in relation to her application to the MIU. A response was received at 5.19 pm on the same day which relevantly stated: 'Given your advice above, and your email below, the Department will withdraw your request for Ministerial Intervention under s 351 at this time. No further action will be taken in respect of the s351 request currently before the department.

If in the future you wish to request the Minister to intervene in your case under s351 of the Migration Act 1958 it is open for you to make such a request.'

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.

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.

OBSERVATIONS 48 Ms Ogawa has been the unfortunate victim of three circumstances which I shall shortly summarise.

1. Migration Review Tribunal Decision favourable to Ms Ogawa 49 On 9 June 2004 the Migration Review Tribunal found that the delegate's decision to cancel her Student visa should be set aside on the ground that the Tribunal was not satisfied that any breach of the visa had occurred. Because of a delay in the delivery of that decision, the visa had already expired. Scarlett FM observed at [48]: 'I have commented that this decision was not handed down until 9th June 2004. By that time the Applicant's student visa had already expired on 15th March 2004. What happened is that the Tribunal handed to the Applicant a worthless victory. It set aside the decision to cancel a student visa after the time when the visa, had it not been cancelled, would already have expired. This, to my mind, placed the Applicant in a difficult, if not impossible, position.'

50 Despite His Honour's observations, he considered that there was nothing which could be done by him and held at [51]: 'Regrettably for the Applicant, my finding in respect of the earlier decision does not assist her in this case. In my view the situation, notwithstanding the rather unfortunate treatment she has received from, originally the Migration Review Tribunal and the Ministerial Intervention Unit of the Respondent Minister's Department, leave her in the situation that there is no jurisdictional error, that her application must be dismissed.'

2. Withdrawal of s 351 application 51 Ms Ogawa's application under s 351 was, without her instructions, withdrawn from consideration. 52 Scarlett FM said at [37] -[39]: 'I would say, however, that it is quite clear from the material that appears in Ms S's email to the Applicant and the quote from the Applicant of 22nd September 2005, from the Applicant to Ms P of the Department, that it was never the intention of the Applicant to withdraw her request for Ministerial Intervention under the provisions of s.351 of the Migration Act.

It is quite clear that the Applicant was asking for that application for Ministerial Intervention to be deferred until the conclusion of the proceedings for judicial review. It was the action of the First Respondent Minister, or the delegate thereof, in the Ministerial Intervention Unit, to bring the Applicant's application for Ministerial Intervention to an end.

That was not what the Applicant sought. She sought a deferment, or a postponement, or an adjournment. She did not seek to withdraw it. She did not seek to regard it as having been abandoned. In my view the Ministerial Intervention Unit of the officer of the First Respondent Minister, or the Department of the First Respondent Minister, cannot escape criticism.'

Scarlett FM then observed at [41]: 'What the Applicant asked, quite reasonably, was for that request to be deferred until she had completed her quest to obtain a favourable order by means of the process of judicial review. It is easy to understand, and as I said, it is not at all unreasonable. In my view the decision by the Ministerial Intervention Unit to regard that application as at an end was, to my mind, unreasonable and in some circumstances not fair to the Applicant.'

53 However, the email stating that the application was being withdrawn was apparently not received by her. Even if it had been received by her, the Minister gave the clear indication that she was able to apply again. The email states: 'If in the future you wish to request the Minister to intervene in your case under s351 of the Migration Act 1958 it is open for you to make such a request.'

54 Scarlett FM expressed his clear opinion that the manner in which Ms Ogawa's application for Ministerial intervention was dealt with by the Minister's office was unfortunate. He also observed that the Tribunal 'somewhat regretfully' reached its finding on this issue.

3. Reinstatement of special leave to appeal to the High Court 55 Since the decision of Scarlett FM, Callinan J has ordered that Ms Ogawa's special leave application be reinstated. Accordingly, her special leave application has not been abandoned. Orders of the High Court, subject to any contrary order made by the Court or a Justice, take effect from the date on which they are given or made (see High Court Rules: Part 8 Rule 8.02). Since this application has been revived it would follow that Ms Ogawa's judicial review proceedings have not been completed. It is on this basis that Ms Ogawa claims that the Bridging visa issued to her on 6 July 2004 has also revived. 56 This Court is not able to take into account events which have occurred subsequent to the determination of Scarlett FM and on this appeal can only determine whether His Honour erred. Accordingly this Court is unable to provide the remedy which would give effect to the recent events referred to above. 57 I draw these matters to the attention of the Minister for consideration. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.