FEDERAL COURT OF AUSTRALIA
Ogawa v Finance Minister [2021] FCAFC 149
Appeal from: Ogawa v Finance Minister [2021] FCA 59 File number(s): QUD 62 of 2021 Judgment of: LOGAN, FARRELL AND ANDERSON JJ Date of judgment: 19 August 2021 Catchwords: ADMINISTRATIVE LAW – judicial review – whether appellant afforded procedural fairness – whether the primary judge misconceived the appellant’s claim – whether the primary judge did not consider the appellant’s actual claim when making the decision to refuse the appellant’s act of grace payment, resulting in judicial error – appeal dismissed with costs Legislation: Australian Human Rights Commission Act 1986 (Cth) – s 29
International Covenant on Civil and Political Rights
Public Governance, Performance and Accountability Act 2013 (Cth) – s 65
International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171 Arts 2, 9. (entered into force 23 March 1976) - Arts 2(3), 9 and 9(5)
Cases cited: CPJ16 v Minister for Home Affairs [2020] FCAFC 212
International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 13 August 2021 Counsel for the Appellant: The Appellant appeared on her own behalf. Counsel for the Respondent: Ms B O’Brien Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 62 of 2021 BETWEEN: DR MEGUMI OGAWA
Appellant
AND: FINANCE MINISTER
Respondent
ORDER MADE BY:
LOGAN, FARRELL AND ANDERSON JJ
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
The appellant (Dr Ogawa) appeals from the judgment of the primary judge delivered on 5 February 2021 in Ogawa v Finance Minister [2021] FCA 59 (Reasons), whereby her application for judicial review of a decision of the respondent (Minister) not to authorise an “act of grace payment” under s 65 of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) was dismissed.
BACKGROUND
In 2014, pursuant to s 29 of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) the Australian Human Rights Commission (AHRC) published a report recommending that Dr Ogawa be paid compensation of $50,000 in respect of a period in 2006 when she was detained in immigration detention (AHRC Report). The AHRC considered that Dr Ogawa’s detention was arbitrary within the meaning of Article 9 of the International Covenant on Civil and Political Rights (ICCPR) because she ought to have been placed in a less restrictive form of detention.
In 2019, Dr Ogawa applied to the Minister under s 65(1) of the PGPA Act for an act of grace payment…
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- Case
- [2021] FCAFC 149
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether Dr. Ogawa was afforded procedural fairness in the decision-making process and whether the primary judge misconceived her claim. The court had to determine if the primary judge failed to consider Dr. Ogawa's actual claim when making the decision to refuse the payment, resulting in judicial error.
The court found that the Delegate had indeed considered Dr. Ogawa's claim about Article 2(3) of the ICCPR but did not accept it. The primary judge's reasons demonstrated a proper understanding of Dr. Ogawa's contentions regarding Article 2(3) and her assertion that it imposes a requirement on the Commonwealth of Australia to make an act of grace payment in these circumstances. The court held that the decision to award such a payment rested on the Delegate's exercise of discretion, rather than any supposed requirements set out in the ICCPR. Consequently, the appeal was dismissed, and Dr. Ogawa was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant pay the respondent’s costs of the appeal.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Finally, the Minister submits that Dr Ogawa’s Submissions misconceive the content and enforceability of the ICCPR. Consistent with the primary judge’s Reasons at [53], Article 2(3) provides for processes to secure remedies (if granted) for breaches of substantive rights in the ICCPR. The Minister submits that, in this case, the Delegate concluded in effect that there was no breach of the ICCPR substantive rights such as Article 2(3). That finding, in the Minister’s submission, was within the scope of the Delegate’s jurisdiction. In any event, the Minister submits, that if Article 2(3) was breached, it is not enforceable under the domestic law of Australia: CPJ16 v Minister for Home Affairs [2020] FCAFC 212 at [69]. Further, the Minister submits that the recommendations of the AHRC, under s 29 of the AHRC Act, do not give rise to any rights or entitlements. As a consequence, there was no error in the Delegate’s Decision that the AHRC’s recommendation of compensation “does not give rise to an entitlement.”Consideration The sole ground of appeal must be rejected as there is no substance to the allegation that the primary judge failed to afford procedural fairness to Dr Ogawa by misconceiving Dr Ogawa’s claim and not considering the actual claim advanced by Dr Ogawa. That is so for the reasons that follow. First, it is apparent from p 3 of the Decision that the Delegate did refer to Dr Ogawa’s claim that unless an act of grace payment was approved, the Commonwealth of Australia would be in breach of Article 2(3) of the ICCPR. The Delegate, at pp 5 and 7 of the Decision, made specific reference to the findings and recommendations set out in the AHRC Report, including that Dr Ogawa’s detention was arbitrary under Article 9(1) of the ICCPR and that Dr Ogawa be compensated in the amount of $50,000 and offered an apology. The Delegate, at pp 6 and 7 of the Decision, referred to the submissions made by the Department of Home Affairs, that Dr Ogawa’s detention was lawful and a correct and proportionate measure and there were no special circumstances warranting an act of grace payment. The Delegate also observed, at p 8 of the Decision, that notwithstanding the recommendation of compensation made by the AHRC, a recommendation by the AHRC does not give rise to an entitlement. The Delegate, at pp 7 and 8 of the Decision, made findings that Dr Ogawa’s detention was lawful and not arbitrary and that, as a consequence, there was no basis for compensation. The Delegate concluded that there were no special circumstances justifying payment where Dr Ogawa had refused to cooperate with the Department of Home Affairs, notwithstanding requests by the Department for her to regularise her immigration status. It is apparent from the Delegate’s Decision, that the Delegate directed his mind to Dr Ogawa’s claim about Article 2(3) of the ICCPR but did not accept it. Second, there is no substance to the submission made by Dr Ogawa that the primary judge did not understand Article 2(3) of the ICCPR in the context of considering the Decision of the Delegate. The primary judge’s Reasons demonstrate that his Honour had regard to Dr Ogawa’s claim regarding Article 2(3) of the ICCPR at [27] of the Reasons and noted, at [43] of the Reasons, that Dr Ogawa’s complaint appeared to be that the Delegate did not accept the AHRC’s findings. The primary judge referred specifically to the submissions advanced by Dr Ogawa regarding Article 2(3) of the ICCPR at [49]-[54] of the Reasons. The primary judge considered, at [52] of the Reasons, Dr Ogawa’s contention relating to Australia’s compliance with the ICCPR, and her assertion that Article 2(3) imposes upon the Commonwealth of Australia the requirement to make an act of grace payment in these circumstances. The primary judge correctly found that the decision to award an act of grace payment turned upon the exercise by the Delegate of the Minister of his discretion, whether there were special circumstances that warranted the making of a payment under s 65(1) of the PGPA Act, as opposed to any supposed requirements set out in the ICCPR.