Ogawa v Finance Minister

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FEDERAL COURT OF AUSTRALIA

Ogawa v Finance Minister [2021] FCA 59  

File number: QUD 112 of 2020
Judgment of: SNADEN J
Date of judgment: 5 February 2021
Catchwords: ADMINISTRATIVE LAW – judicial review – refusal to grant act of grace payment – whether applicant afforded procedural fairness – whether decision legally unreasonable – whether decision was otherwise tainted by jurisdictional error – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 – ss 3, 5, 6 and 7

Australian Human Rights Commission Act 1986 (Cth) – sch 2; ss 7, 11 and 29

Migration Act 1958 (Cth) – ss 189 and 351

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)

United Nations Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3. (entered into force 2 September 1990)

Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

CRU18 v Minister for Home Affairs [2020] FCAFC 129

Griffith University v Tang (2005) 221 CLR 99

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for State of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Ogawa v Minister for Immigration and Multicultural Affairs and Another [2006] 156 FCR 246

R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 100
Date of hearing: Determined on the papers
Date of last submission/s: 1 September 2020 (applicant)
28 August 2020 (respondent)
Solicitor for the Applicant: The Applicant filed submissions on her own behalf
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 112 of 2020
BETWEEN:

DR MEGUMI OGAWA

Applicant
AND:

FINANCE MINISTER

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

5 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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


REASONS FOR JUDGMENT

SNADEN J:

  1. On 27 July 2019, the applicant, Dr Ogawa, applied to the Commonwealth Department of Finance for what is known as an “act of grace” payment under s 65 of the Public Governance, Performance and Accountability Act 2013 (Cth) (hereafter, the “PGPA Act”).  By means of written correspondence dated 21 May 2020 (and via the agency of his duly-appointed delegate), the respondent (hereafter, the “Minister”) made a decision to decline that application (hereafter, the “AOG Application”).

  2. By an amended originating application dated 28 May 2020, Dr…

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Details
Case
[2021] FCA 59
Decision Date

CaseChat Overview and Summary

Dr Ogawa applied for judicial review of the Minister's decision to refuse her an act of grace payment. The matter was determined on the papers following the cancellation of the scheduled trial due to the COVID-19 pandemic. The applicant's case was based on her detention at the Villawood Immigration Detention Centre in 2006 and the subsequent refusal of her application for an act of grace payment. The central legal issues were whether the decision-maker afforded the applicant procedural fairness, whether the decision was legally unreasonable, and whether it was otherwise tainted by jurisdictional error.

The court found that the decision-maker provided Dr Ogawa with procedural fairness by considering all relevant material and giving her an opportunity to respond. The court also held that the decision was not legally unreasonable as it was based on a valid and rational assessment of the facts. Additionally, the court determined that there was no jurisdictional error in the decision-making process. Consequently, the application was dismissed with costs.

The final orders of the court were that the application be dismissed and the applicant pay the respondent's costs of the application, to be assessed in default of agreement in accordance with the court's Costs Practice Note (GPN-COSTS).

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

Background

Background to the litigation

For the reasons that follow, the application will be dismissed with costs.BACKGROUND The relevant background to the AOG Decision dates back to 2003. It emerges without material controversy from the evidence that the parties adduced. For Dr Ogawa, that evidence assumed the form of three affidavits, sworn respectively on 25 April 2020, 5 June 2020 and 14 July 2020. For the Minister, it assumed the form of a single affidavit affirmed on 24 June 2020 by his delegate—and the maker of the AOG Decision—Mr Gareth Sebar. In September 2003, Dr Ogawa was the holder of a student visa, which had been issued to her under the Migration Act 1958 (Cth) (hereafter, the “Migration Act”). That visa was due to expire in March 2004; but, on 29 September 2003, it was instead cancelled. The circumstances that animated that cancellation are neither known nor material. Whatever they were, they were set at nought by a later decision of what was then known as the Migration Review Tribunal, the effect of which was that that cancellation was set aside. Unfortunately for Dr Ogawa, that occurred on 9 June 2004, after her visa had expired. The setting aside of the cancellation was, then, largely (if not entirely) academic. Later in June 2004, Dr Ogawa made an application for judicial review in respect of the Migration Review Tribunal’s decision to set aside the cancellation of her visa. Again, her purpose in doing so is neither known nor material. I record it merely because it apparently had the effect of entitling her to a bridging visa: a circumstance that assumes some prominence, as will shortly be seen. By that (bridging) visa, Dr Ogawa was permitted to remain in Australia until 28 days after the determination of her judicial review application (or any subsequent and related appeal or appeals). Dr Ogawa’s judicial review application did not succeed. An application for leave to appeal from that decision to a full court of this court also failed. Undeterred, Dr Ogawa then filed an application for special leave to appeal that outcome in the High Court. On 20 January 2005, that special leave application was deemed to have been abandoned, apparently in default of Dr Ogawa’s filing a written case and a draft notice of appeal. That brought to an end Dr Ogawa’s attempts to judicially review the Migration Review Tribunal’s decision (by which, it might be remembered, she succeeded in setting aside the cancellation of her student visa). 28 days later—that is, on 17 February 2005—Dr Ogawa’s bridging visa expired and she became an unlawful non-citizen for the purposes of the Migration Act. There then ensued a series of communications between Dr Ogawa and the Department of Immigration and Multicultural Affairs, the overall gist of which was that Dr Ogawa’s migration status needed to be regularised. Those communications notwithstanding, Dr Ogawa remained in Australia without a valid visa (or, at the very least, without a visa that the Commonwealth considered was valid). On 19 May 2006 and pursuant to s 189 of the Migration Act, she was apprehended by the Australian Federal Police and detained at the Villawood Immigration Detention Centre (hereafter, the “VIDC”). She remained there for 68 days, after which she was released on a bridging visa.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By an amended originating application dated 28 May 2020, Dr Ogawa seeks prerogative relief to set aside the Minister's decision (hereafter, the "AOG Decision") and to have her AOG Application determined according to law. Her application was the subject of a case-management hearing that took place on Friday, 3 July 2020. The matter was on that day listed for trial to take place on Wednesday, 26 August 2020. In the weeks that followed, Victoria (where my chambers are based) succumbed to the grip of a “second wave” of the COVID-19 pandemic by which calendar year 2020 was so wretchedly beset. As a result, my chambers (and those of the majority of the judges of this court’s Victorian registry) were deemed off-limits and the court was left with little option but to cancel many of its scheduled hearings. The trial in this matter did not escape that fate. In the face of that extreme inconvenience, the parties consented—very sensibly, if I might say—to my determining the application on the papers. Orders were made for the preparation and filing of written submissions and evidence, and the court’s judgment was reserved with effect from 11 September 2020. For the reasons that follow, the application will be dismissed with costs.BACKGROUND The relevant background to the AOG Decision dates back to 2003. It emerges without material controversy from the evidence that the parties adduced. For Dr Ogawa, that evidence assumed the form of three affidavits, sworn respectively on 25 April 2020, 5 June 2020 and 14 July 2020. For the Minister, it assumed the form of a single affidavit affirmed on 24 June 2020 by his delegate—and the maker of the AOG Decision—Mr Gareth Sebar. In September 2003, Dr Ogawa was the holder of a student visa, which had been issued to her under the Migration Act 1958 (Cth) (hereafter, the “Migration Act”). That visa was due to expire in March 2004; but, on 29 September 2003, it was instead cancelled. The circumstances that animated that cancellation are neither known nor material. Whatever they were, they were set at nought by a later decision of what was then known as the Migration Review Tribunal, the effect of which was that that cancellation was set aside. Unfortunately for Dr Ogawa, that occurred on 9 June 2004, after her visa had expired. The setting aside of the cancellation was, then, largely (if not entirely) academic. Later in June 2004, Dr Ogawa made an application for judicial review in respect of the Migration Review Tribunal’s decision to set aside the cancellation of her visa. Again, her purpose in doing so is neither known nor material. I record it merely because it apparently had the effect of entitling her to a bridging visa: a circumstance that assumes some prominence, as will shortly be seen. By that (bridging) visa, Dr Ogawa was permitted to remain in Australia until 28 days after the determination of her judicial review application (or any subsequent and related appeal or appeals). Dr Ogawa’s judicial review application did not succeed. An application for leave to appeal from that decision to a full court of this court also failed. Undeterred, Dr Ogawa then filed an application for special leave to appeal that outcome in the High Court. On 20 January 2005, that special leave application was deemed to have been abandoned, apparently in default of Dr Ogawa’s filing a written case and a draft notice of appeal.

Ratio Decidendi

Legal Principle Established

In September 2003, Dr Ogawa was the holder of a student visa, which had been issued to her under the Migration Act 1958 (Cth) (hereafter, the “Migration Act”). That visa was due to expire in March 2004; but, on 29 September 2003, it was instead cancelled. The circumstances that animated that cancellation are neither known nor material. Whatever they were, they were set at nought by a later decision of what was then known as the Migration Review Tribunal, the effect of which was that that cancellation was set aside. Unfortunately for Dr Ogawa, that occurred on 9 June 2004, after her visa had expired. The setting aside of the cancellation was, then, largely (if not entirely) academic. Later in June 2004, Dr Ogawa made an application for judicial review in respect of the Migration Review Tribunal’s decision to set aside the cancellation of her visa. Again, her purpose in doing so is neither known nor material. I record it merely because it apparently had the effect of entitling her to a bridging visa: a circumstance that assumes some prominence, as will shortly be seen. By that (bridging) visa, Dr Ogawa was permitted to remain in Australia until 28 days after the determination of her judicial review application (or any subsequent and related appeal or appeals). Dr Ogawa’s judicial review application did not succeed. An application for leave to appeal from that decision to a full court of this court also failed. Undeterred, Dr Ogawa then filed an application for special leave to appeal that outcome in the High Court. On 20 January 2005, that special leave application was deemed to have been abandoned, apparently in default of Dr Ogawa’s filing a written case and a draft notice of appeal. That brought to an end Dr Ogawa’s attempts to judicially review the Migration Review Tribunal’s decision (by which, it might be remembered, she succeeded in setting aside the cancellation of her student visa). 28 days later—that is, on 17 February 2005—Dr Ogawa’s bridging visa expired and she became an unlawful non-citizen for the purposes of the Migration Act. There then ensued a series of communications between Dr Ogawa and the Department of Immigration and Multicultural Affairs, the overall gist of which was that Dr Ogawa’s migration status needed to be regularised. Those communications notwithstanding, Dr Ogawa remained in Australia without a valid visa (or, at the very least, without a visa that the Commonwealth considered was valid). On 19 May 2006 and pursuant to s 189 of the Migration Act, she was apprehended by the Australian Federal Police and detained at the Villawood Immigration Detention Centre (hereafter, the “VIDC”). She remained there for 68 days, after which she was released on a bridging visa. In 2011, Dr Ogawa lodged with the Australian Human Rights Commission (hereafter, the “AHRC”) a written complaint against the Department of Immigration and Citizenship (as it was by then known) concerning her detention at the VIDC. That application was not reproduced in the evidence that the court received but the report published by the AHRC in respect of it was. That report (hereafter, the “AHRC Report”) contained the following particulars of Dr Ogawa’s complaint:20.On 2013 June 2011, Dr Ogawa lodged a written complaint with the Commission. She alleged that she was detained unreasonably at VIDC and that her detention violated her human rights as housing detention was denied for no reason. Dr Ogawa was detained at VIDC for 68 days, from 20 May 2006 to 26 July 2006. 21. On 29 June 2011, Dr Ogawa submitted:I could not make a complaint to the Commission earlier because: i) I did not know that the Commission can help me in this case; and ii) in any event, I was in and out of jail frequently which made it virtually impossible to deal with this complaint. I should also add that my mental disorder makes me avoid anything which causes bad memories. 22.On 8 August 2011, Dr Ogawa submitted that her detention was arbitrary, in breach of the ICCPR, and referred to the decision of Cowdroy J of the Federal Court in Ogawa v Minister for Immigration [2006] FCA 1694 (15 December 2006). 23.On 14 September 2011 Dr Ogawa sought to add a further allegation to her complaint, that the Department’s refusal to pay her compensation for arbitrary detention is a breach of her human rights. On 27 September 2011 the Commission confirmed that this will now be considered as part of her complaint. I have now made a finding of arbitrary detention. Accordingly, I will consider any recommendations as to compensation in part 7 below. In the absence of some apparent reason not to, I infer that that summary is accurate.