FEDERAL COURT OF AUSTRALIA
Ogawa v Finance Minister [2020] FCA 829
File number: QUD 663 of 2019 Judge: RANGIAH J Date of judgment: 16 June 2020 Catchwords: ADMINISTRATIVE LAW – application for judicial review of decision to decline to waive debt – whether decision was unreasonable – application dismissed
COSTS – unreasonable conduct by both parties – each party to bear its own costs
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39B
Public Governance, Performance and Accountability Act 2013 (Cth) s 63
Federal Court Rules 2011 (Cth) r 9.05
Migration Regulations 1994 (Cth)
Cases cited: Minister for Home Affairs v Ogawa [2019] FCAFC 98
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
Date of hearing: 3 March 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms B O’Brien Solicitor for the Respondent: Australian Government Solicitor Solicitor for the Administrative Appeals Tribunal: Ms J Forsyth of Mills Oakley Lawyers ORDERS
QUD 663 of 2019 BETWEEN: MEGUMI OGAWA
Applicant
AND: FINANCE MINISTER
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
16 JUNE 2020
THE COURT ORDERS THAT:
1.The interlocutory application filed on 5 December 2019 is dismissed.
2.The amended originating application is dismissed.
3.Each party is to bear its own costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
On 2 March 2020, a delegate of the respondent (the Minister) made a decision under s 63(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) (the Public Governance Act) declining to waive a debt owed by the applicant, Dr Megumi Ogawa, to the Commonwealth.
By an amended originating application, Dr Ogawa applies for orders that the Minister’s decision be quashed or set aside and for other orders. The application is made pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
The application has come about in unusual circumstances. On 21 June 2019, Dr Ogawa applied for waiver of the debt and, on 29 October 2019, she filed an originating application seeking relief in respect of what she alleged was the Minister’s unreasonable delay in making the decision. That application was set down for hearing on 3 March 2020.
On 2 March 2020, the day before the hearing, the Minister’s delegate made a decision to decline to waive the debt. At the hearing, Dr Ogawa applied for leave to amend her originating application to challenge that decision. The Minister neither consented to, nor opposed, the amendment.…
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- Case
- [2020] FCA 829
- Decision Date
CaseChat Overview and Summary
The court examined the decision-making process and found that the delegate had properly exercised her discretion in declining to waive the debt. The court held that it was reasonable for the delegate to find that waiving the debt would not be appropriate, given the circumstances. Dr Ogawa’s argument that the Commonwealth should bear the consequences of its own errors was rejected. The court held that Dr Ogawa’s decision to litigate and the Commonwealth’s errors did not justify waiving the debt. The court concluded that the decision was not unreasonable and dismissed Dr Ogawa’s application. In addition, the court found that both parties had acted unreasonably and ordered that each party bear its own costs.
Orders
Orders of the court
1. The interlocutory application filed on 5 December 2019 is dismissed.
2. The amended originating application is dismissed.
3. Each party is to bear its own costs of the proceeding.
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
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Ratio Decidendi
Legal Principle Established
The delegate found that a waiver of the Commonwealth debt would not be appropriate and decided not to authorise waiver of her debt. Consideration Dr Ogawa’s amended originating application asserts that the delegate’s decision was so unreasonable that no reasonable person could have exercised the power in that way. Although Dr Ogawa was given leave to amend her originating application to include grounds that there was a denial of procedural fairness, and that the decision-maker failed to take into account relevant considerations and took into account irrelevant considerations, those grounds have not been included. Dr Ogawa did not address those grounds in her submissions. I will proceed on the basis that they are no longer pursued. The amended originating application retains the allegation contained in the original that there was unreasonable delay in making the decision. However, that allegation was only relevant to Dr Ogawa’s application for orders requiring the Minister to make a decision. That part of the application has been overtaken by the decision having been made on 2 March 2020. Accordingly, that part of the application falls away. In written submissions filed on 2 March 2020, Dr Ogawa said that the case raises only one question, namely:Is it reasonable for the Respondent to decide that an overseas student from a non-English speaking country, studying on scholarship, with no legal qualification or training in this country should be responsible for the whole consequences of the anomaly in Commonwealth legislation, the failure of a Commonwealth quasi-judicial institution to make a decision within the timeframe and the maladministration of a Commonwealth Department (of Immigration) in handling the Applicant’s case, while the Commonwealth including the Respondent has done nothing to rectify those Commonwealth’s mistakes? In oral submissions, Dr Ogawa said that the original debt concerned her dispute against the University of Melbourne. She asserted that the Department had wrongly cancelled her visa, and she went to the Migration Review Tribunal (the MRT), which made a decision in her favour. She said that in the meantime, her student visa had expired. She said that the Regulations now allow a new application for a visa to be made within 28 days of the decision of the AAT, but at that time there was no equivalent provision. She said that was an anomaly which meant that she could not get her student visa back and caused the litigation and her immigration detention. She said that the Courts were unable to fix the problem caused by the anomaly, but had recognised it in their decisions. Dr Ogawa said that she had applied for another student visa but it was not granted because of the outstanding Commonwealth debt. She submitted that her difficulties existed because of the Commonwealth debt, and the Commonwealth debt existed due to the anomaly in the Regulations and the failure of the MRT to make a decision quickly. Dr Ogawa argued that while the delegate said that it was her decision to litigate, without the litigation she would have been detained and deported. She submitted that the Commonwealth Ombudsman made a recommendation to waive the debt and the AHRC had tried to reduce the debt.