Ogawa v Finance Minister - [2021] FCA 1666

FEDERAL COURT OF AUSTRALIA
Ogawa v Finance Minister [2021] FCA 1666

File number: QUD 204 of 2021

Judgment of: LOGAN J

Date of judgment: 13 December 2021

Catchwords: ADMINISTRATIVE LAW – application for judicial review of Minister’s delegate’s refusal to waive the applicant’s indebtedness to the Commonwealth – where applicant had previously made a similar application for waiver – where application to Minister was an application for reconsideration supported by a number of letters from Australian public expressing support for the applicant – whether Minister’s delegate erred in not making reference to the additional information constituted by those letters – where reasons of Minister’s delegate addressed the claim as made – whether the delegate erred in not considering claims made by the applicant in Federal Court proceedings concerning the previous application – where applicant did not submit this to the delegate – where delegate part of administrative continuum – where delegate entitled to proceed on basis that earlier decision was lawful – application dismissed

Legislation: Public Governance, Performance and Accountability Act 2013 (Cth) s 63

Cases cited:
AAL19 v Minister for Home Affairs (2020) 277 FCR 393

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

Jebb v Repatriation Commission (1998) 8 AAR 285

Ogawa v Finance Minister [2020] FCA 829

Ogawa v Finance Minister [2021] FCAFC 17

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

Re Easton and Repatriation Commission (1987) 6 AAR 558

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 30

Date of hearing: 13 December 2021

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 204 of 2021

BETWEEN:
MEGUMI OGAWA

Applicant

AND:
FINANCE MINISTER

Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

13 DECEMBER 2021

THE COURT ORDERS THAT:
1.An extension of time be granted to the applicant to 30 May 2021 for the filing of her originating application.
2.The applicant be granted leave to amend her originating application in terms of the amended originating application as annexed to the affidavit of the applicant filed on 25 July 2021.
3.The Registrar file the applicant’s written outline of submissions on the Court file.
4.The originating application as so amended be dismissed.
5.The applicant pay the respondent’s costs to be fixed by a Registrar if not agreed. In the fixing of those costs, the Registrar is not to allow to the respondent the costs of and incidental to the notice of objection to competency.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
LOGAN J:

On 21 June 2019, the applicant, Dr Megumi Ogawa (Dr Ogawa), applied to the Finance Minister (Minister) for the exercise of a power…

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.

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Details

Case: [2021] FCA 1666
Decision Date: 13 December 2021

CaseChat Overview and Summary

The applicant, Ogawa, sought judicial review of the decision by a delegate of the Minister for Finance to refuse a waiver of her indebtedness to the Commonwealth. The Federal Court was tasked with determining whether the delegate had erred in not considering certain additional information and claims made by the applicant. The applicant had previously applied for a waiver, and the current application was supported by letters from the Australian public. The court was required to decide if the delegate's failure to consider these letters constituted an error and whether the delegate should have considered claims made by the applicant in Federal Court proceedings concerning the previous application, even though these claims were not submitted to the delegate.

The court found that the delegate was not required to consider the letters from the Australian public as they were not part of the original application for waiver. The court reasoned that the delegate was part of an administrative continuum and was entitled to proceed on the basis that the earlier decision was lawful. Additionally, the court held that the delegate was not obliged to consider claims made in the Federal Court proceedings because the applicant did not submit these to the delegate. Consequently, the court dismissed the application for judicial review.

The court granted the applicant an extension of time to file her originating application and leave to amend her application. The court also directed that the applicant's written outline of submissions be filed on the Court file. The originating application, as amended, was dismissed, and the applicant was ordered to pay the respondent's costs, with certain exceptions. The Registrar was directed not to allow the costs of and incidental to the notice of objection to competency.

Orders

Orders of the court

1. An extension of time be granted to the applicant to 30 May 2021 for the filing of her originating application.

2. The applicant be granted leave to amend her originating application in terms of the amended originating application as annexed to the affidavit of the applicant filed on 25 July 2021.

3. The Registrar file the applicant’s written outline of submissions on the Court file.

4. The originating application as so amended be dismissed.

5. The applicant pay the respondent’s costs to be fixed by a Registrar if not agreed. In the fixing of those costs, the Registrar is not to allow to the respondent the costs of and incidental to the notice of objection to competency.

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

Full text does not contain this section.

File number:	QUD 204 of 2021
Judgment of:	LOGAN J
Date of judgment:	13 December 2021
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of Minister’s delegate’s refusal to waive the applicant’s indebtedness to the Commonwealth – where applicant had previously made a similar application for waiver – where application to Minister was an application for reconsideration supported by a number of letters from Australian public expressing support for the applicant – whether Minister’s delegate erred in not making reference to the additional information constituted by those letters – where reasons of Minister’s delegate addressed the claim as made – whether the delegate erred in not considering claims made by the applicant in Federal Court proceedings concerning the previous application – where applicant did not submit this to the delegate – where delegate part of administrative continuum – where delegate entitled to proceed on basis that earlier decision was lawful – application dismissed
Legislation:	Public Governance, Performance and Accountability Act 2013 (Cth) s 63
Cases cited:	AAL19 v Minister for Home Affairs (2020) 277 FCR 393 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 Jebb v Repatriation Commission (1998) 8 AAR 285 Ogawa v Finance Minister [2020] FCA 829 Ogawa v Finance Minister [2021] FCAFC 17 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re Easton and Repatriation Commission (1987) 6 AAR 558 Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	30
Date of hearing:	13 December 2021
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms B O’Brien
Solicitor for the Respondent:	Australian Government Solicitor

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	13 DECEMBER 2021