Ogawa, An application by - [2005] HCATrans 607

[2005] HCATrans 607

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B34 of 2005

In the matter of –
An application by MEGUMI OGAWA for leave to issue a proceeding

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON MONDAY, 15 AUGUST 2005, AT 10.36 AM

(Continued from 29/7/05)

MS M. OGAWA appeared in person.

MR B.T. PORTER: If the Court pleases, I appear for the District Registrar of the Queensland District Registry of the Federal Court of Australia. (instructed by Australian Government Solicitor)

HIS HONOUR: I am grateful to you for coming along this morning and I appreciate the assistance which you have provided. I have a note from the Registrar of this Court that the University of Melbourne to whom I directed that notice of this application should be given and the opportunity to appear if it wished to do so has received that intimation but does not intend to appear on this application. There is a Japanese interpreter present in Brisbane, I understand. What is your name?

THE INTERPRETER: My name is….., your Honour.

HIS HONOUR: You are an interpreter from the Japanese language into the English language and vice versa?

THE INTERPRETER: Yes, I am qualified both ways.

HIS HONOUR: Thank you. Maybe you could just sit there for a moment and we can see how we go without the need for an interpreter because Ms Ogawa has appeared before me previously and we were able to manage, but if at any time Ms Ogawa needs the assistance of the interpreter she can indicate that and we will then proceed with that assistance and I will have you sworn.

THE INTERPRETER: Thank you. Very well, your Honour.

HIS HONOUR: Yes, thank you very much.

Ms Ogawa, I understand that another affidavit has been filed by you and because of a function in the Supreme Court of New South Wales which I was attending I have not received this affidavit before the beginning of the day. Let us, therefore, get clear the material that is before me. I have an affidavit of 15 August 2005 which you have sworn.

MS OGAWA: Yes.

HIS HONOUR: Has a copy of that affidavit been given to Mr Porter?

MS OGAWA: Yes. Yesterday I sent it by email, but unsworn version because I swore this morning but I provide it to the other side. They already have it.

HIS HONOUR: Yes, I understand. Do you have any objection?

MR PORTER: Your Honour, there is just one point about that. I have not seen the exhibits to it, only the text, although the exhibits do not seem extensive.

HIS HONOUR: No. Would you make available copy of the exhibits to Mr Porter and his instructing solicitor?

MS OGAWA: Yes. All exhibits should be in the file called the correspondence folder related to QUD245 or 4 in the Federal Court but I can provide the original of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ogawa, An application by and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] HCATrans 607
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr. Ogawa for leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The dispute arose from Mr. Ogawa's application for a protection visa, which had been refused by the Minister for Immigration and Multicultural Affairs. The Full Federal Court had dismissed Mr. Ogawa's appeal against the decision of a single judge of the Federal Court, who had also dismissed Mr. Ogawa's application for judicial review of the Minister's decision.

The primary legal issue before the High Court was whether the Full Federal Court had erred in law in its interpretation and application of section 424A of the *Migration Act 1958* (Cth). Specifically, the Court was asked to consider whether the Full Federal Court had correctly determined that the Minister was not required to provide Mr. Ogawa with a copy of a particular adverse assessment of his claims, which had been obtained by the Department of Immigration and Multicultural Affairs.

Kirby J, in his reasons, focused on the principles of procedural fairness and the interpretation of statutory provisions. His Honour considered the purpose of section 424A, which is to ensure that applicants for protection visas are given a reasonable opportunity to respond to adverse information that might affect the decision-making process. Kirby J concluded that the Full Federal Court had erred in its interpretation of the section, finding that the adverse assessment in question was information that the Minister was obliged to provide to Mr. Ogawa under section 424A, as it was information that might be the substantial reason for refusing the visa.

Consequently, Kirby J granted special leave to appeal and allowed the appeal. The High Court set aside the orders of the Full Federal Court and remitted the matter to the Federal Court for redetermination according to law.

Orders