Ogawa v Finance Minister

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FEDERAL COURT OF AUSTRALIA

Ogawa v Finance Minister [2022] FCAFC 145

Appeal from: Ogawa v Finance Minister [2021] FCA 1666
File numbers: QUD 450 of 2021
QUD 6 of 2022
Judgment of: CHARLESWORTH, THAWLEY AND GOODMAN JJ
Date of judgment: 31 August 2022
Catchwords: ADMINISTRATIVE LAW – appeal from orders dismissing an application for judicial review of a decision of the Finance Minister – Finance Minister refusing to waive a debt owed by the appellant to the Commonwealth – whether primary judge erred in refusing to hear arguments about earlier waiver requests and litigation that had not been raised before the Finance Minister in support of the waiver request – whether primary judge erred in concluding that the Finance Minister understood and had regard to the appellant’s arguments – whether primary judge failed to afford the appellant procedural fairness – whether the appellant should be permitted to raise arguments concerning prior waiver requests and subsequent litigation on appeal – appeal dismissed  
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Federal Court of Australia Act 1976 (Cth) ss 24, 25

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth)

Public Governance, Performance and Accountability Act 2013 (Cth) ss 63, 64

Federal Court Rules 2011 (Cth) r 4.12

Cases cited:

Charisteas v Charisteas [2021] HCA 29; 393 ALR 389

Ogawa v Finance Minister [2020] FCA 829

Ogawa v Finance Minister [2021] FCA 1666

Ogawa v Finance Minister [2021] FCAFC 17

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 62
Date of hearing: 1 August 2022
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms B O’Brien
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 450 of 2021
BETWEEN:

MEGUMI OGAWA

Applicant
AND:

FINANCE MINISTER

Respondent

ORDER MADE BY:

CHARLESWORTH, THAWLEY AND GOODMAN JJ

DATE OF ORDER:

31 AUGUST 2022

THE COURT ORDERS THAT:

1.The applicant has leave to appeal.

2.The grounds of appeal be those set out in annexure MO5 to the affidavit of the appellant filed on 20 February 2022.

3.The appeal is dismissed.

4.The applicant pay the respondent’s costs of the application for leave to appeal and of the appeal, as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

QUD 6 of 2022
BETWEEN:

MEGUMI OGAWA

Appellant
AND:

FINANCE MINISTER

Respondent

ORDER MADE BY:

CHARLESWORTH, THAWLEY AND GOODMAN JJ

DATE OF ORDER:

31 AUGUST 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs as agreed or taxed.

[Note:  Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011]


REASONS FOR JUDGMENT

THE COURT

  1. The appellant, Dr Megumi Ogawa, owes debts to the Commonwealth totalling at least $46,461.89 (Debt).

  2. The Debt is comprised of a…

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Details
Case
[2022] FCAFC 145
Decision Date

CaseChat Overview and Summary

Dr Ogawa, a Japanese citizen, appealed against a decision by the Federal Circuit and Family Court of Australia to dismiss her application for judicial review of a decision by the Finance Minister, which refused to waive a debt owed by Dr Ogawa to the Commonwealth. The debt arose from a series of costs orders made against Dr Ogawa in litigation spanning more than 10 years, largely concerning her attempts to secure a student visa under the Migration Act 1958 (Cth) or otherwise concerning her immigration status. The central issue before the court was whether the primary judge erred in refusing to hear arguments about earlier waiver requests and litigation that had not been raised before the Finance Minister in support of the waiver request, and whether the primary judge failed to afford Dr Ogawa procedural fairness.

The court held that the primary judge did not err in refusing to hear arguments about earlier waiver requests and litigation that had not been raised before the Finance Minister in support of the waiver request. The court found that Dr Ogawa had not provided any appropriate basis on which to reconsider her matter, particularly in light of the significant consideration already provided by both the Department and the Federal Court. The court also held that the primary judge did not fail to afford Dr Ogawa procedural fairness. The court found that Dr Ogawa had not established that the primary judge had failed to consider all relevant material or had failed to give her an opportunity to be heard.

Accordingly, the appeal was dismissed. The court ordered that Dr Ogawa pay the respondent’s costs as agreed or taxed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs as agreed or taxed.

[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, there will be orders dismissing each of the appeals.THE SECOND DECISION The Second Request expressly sought waiver of a debt owed by Dr Ogawa to the Commonwealth in the amount of $46,461.89. As was the case with the First Request, the Second Request was founded on circumstances arising from Dr Ogawa’s detention under the Migration Act between May and July 2006. That period of detention was the subject of a report to the then Commonwealth Attorney-General from the President of the Australian Human Rights Commission (AHRC Report) containing the following finding and recommendation:7.3 Recommendation that compensation be paid81.I find that the failure to place Dr Ogawa in community detention or another less restrictive form of detention was arbitrary and inconsistent with the right to liberty in article 9 of the ICCPR. She was detained for 68 days.82.I note that at the time of her detention at VIDC, Dr Ogawa had not previously lost her liberty and she experienced the detention as humiliating and distressing.83.I consider that the Commonwealth should pay to Dr Ogawa an amount of compensation to reflect the loss of liberty caused by her detention at VIDC.84.Assessing compensation in such circumstances is difficult and requires a degree of judgment. Taking into account the guidance provided by the decisions referred to above, I consider that payment of compensation in the amount of $50 000 is appropriate. The ICCPR, referred to in that extract, is the International Covenant on Civil and Political Rights to which Australia is a signatory. The VIDC is the Villawood Immigration Detention Centre. The communication to the Attorney-General noted that the Secretary of the Department of Immigration and Citizenship had not accepted the findings expressed in the AHRC Report. The Commonwealth has not paid the recommended compensation of $50,000.00 to Dr Ogawa. It is plain enough that a payment of compensation to Dr Ogawa in the amount of $50,000.00 would put her in sufficient funds to pay the Debt. More will be said about that at the conclusion of these reasons. The materials provided to the delegate in support of the Second Request included letters from concerned Australian citizens. The letters are expressed in the same or similar terms. The citizens describe Dr Ogawa’s prior detention as wrongful. They refer to the recommendation of the AHRC that the Commonwealth pay compensation to Dr Ogawa and to the circumstance that the compensation has not been paid. They express the opinion that it is unfair to require Dr Ogawa to pay $46,461.89 while the recommended compensation of $50,000.00 remains unpaid by the Commonwealth. They express concerns that the failure to pay compensation constitutes a breach of Australia’s international law obligations and so adversely affects Australia’s international reputation. The delegate provided written reasons for the Second Decision dated 13 April 2021, expressed as follows:I refer to your request for a waiver of debt, received by the Department of Finance (Finance) on 29 March 2021 and your further correspondence of 9 April 2021. The request relates to a debt you have incurred by the Commonwealth Government and you have argued the request should be considered as a new application on the basis that Australian citizens consider it is unfair for the Commonwealth to require you to pay the debts, and that Australian citizens wish their Government to observe international law in order to avoid tarnishing their reputation.I have examined the documentation in relation to your matter, including your previous application to waive the debt made on 21 June 2021, the Department’s decision to decline the waiver made on 2 March 2020 and the new information you have provided. I note the decision to decline to waiver has also been considered and upheld by the Federal Court in Ogawa v Minister for Finance [2020] FAC 829 (sic).Decisions on waiver of debt application are only reconsidered where a serious factual error in the decision is identified, or relevant and significant new information is provided. The letters you have provided do not change the … nature or basis of the debt or give rise to any factual error in the decision. Judgments about the fairness of laws are the exclusive domain of the citizenry, in its entirety, through the electoral process. I note that the effect of laws can be considered unfair by some yet not be unintended, anomalous, inequitable or otherwise unacceptable.I do not consider that the additional information provided provides any appropriate basis on which to reconsider your matter, particularly in light of the significant consideration already provided by both the Department and the Federal Court. I have therefore closed your request for a reconsideration.Further correspondence on this matter will be filed but may not be responded to.

Ratio Decidendi

Legal Principle Established

The Debt is comprised of a series of costs orders made against Dr Ogawa in litigation spanning more than 10 years, largely concerning her attempts to secure a student visa under the Migration Act 1958 (Cth) or otherwise concerning her immigration status. Section 63(1)(a) of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) confers on the Finance Minister a discretionary power to authorise the waiver of an amount owing to the Commonwealth. Dr Ogawa has made repeated applications to the Minister for such a waiver. In these reasons it is necessary to refer to two of them, described below as the First Request and the Second Request. The First Request was made on 21 June 2019 and refused on 2 March 2020 (First Decision). Prior to 2 March 2020, Dr Ogawa had commenced proceedings for judicial review to obtain orders compelling the Minister to make a decision (Action QUD 663/2019). After the First Decision was made, Dr Ogawa amended her originating application in that action so as to seek judicial review of the First Decision under s 39B of the Judiciary Act 1903 (Cth) and s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The amended application was dismissed: Ogawa v Finance Minister [2020] FCA 829 (First Judgment). Dr Ogawa’s appeal from the First Judgment was also dismissed: Ogawa v Finance Minister [2021] FCAFC 17 (Logan, Katzmann and Jackson JJ) (Ogawa Full Court). Dr Ogawa made the Second Request about four weeks later. It was refused by a delegate of the Minister on 13 April 2021 (Second Decision). Dr Ogawa commenced an application for judicial review of the Second Decision on 30 May 2021 (Action QUD 204/2021). Within that proceeding, Dr Ogawa filed an interlocutory application by which she sought orders to the effect that evidence and submissions filed in numerous earlier proceedings (including proceedings following the First Decision) be admitted in evidence on her application for judicial review. She also sought an order to the effect that the Registrar be directed to accept for filing affidavit material that she had lodged electronically outside of the case management timeframes ordered by the primary judge. The primary judge granted Dr Ogawa an extension of time to commence the application and leave to amend her originating application. His Honour dismissed the originating application (as amended), as well as the interlocutory application: Ogawa v Finance Minister [2021] FCA 1666 (Reasons). Dr Ogawa now appeals from the judgment (Action QUD 6/2022). She has also commenced an application for leave to appeal from the dismissal of the interlocutory application (Action QUD 450/2021). The grounds of appeal in QUD6/2022 are set out at [21] below. They include a contention that the materials Dr Ogawa had sought to rely upon at first instance were relevant on her application for judicial review, such that the primary judge failed to afford her procedural fairness and otherwise committed appealable error by characterising them as irrelevant and refusing to consider them.