Ogawa v MIMIA

[2007] HCATrans 341

[2007] HCATrans 341

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B76 of 2004

B e t w e e n -

MEGUMI OGAWA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 8.42 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a citizen of Japan.  In November 1999 she came to Australia to study for a Doctorate at the University of Queensland.  She held a student visa valid until 15 March 2004.

In November 2001 the applicant was granted a scholarship by the University of Melbourne ("the University"), to which she then transferred.  In 2002 there was a dispute between the applicant and the University in relation to the appointment of her supervisor.  In the result the University decided not to renew her enrolment from 24 December 2002.

On 29 September 2003, pursuant to s 116 of the Migration Act 1958 (Cth) a delegate of the Minister cancelled the applicant's student visa on the grounds that, because she was no longer enrolled in a registered course, she was in breach of a condition of her visa. On 8 October 2003 the applicant applied for a review of that decision by the Migration Review Tribunal ("the Tribunal").

The Tribunal found that although there had not been strict compliance with the procedures for cancelling the applicant's visa, there had been no procedural unfairness in doing so.  As the applicant had initiated separate proceedings with respect to her dispute with the University, the Tribunal did not think it appropriate to make a finding whether the applicant was in breach of a condition of her visa.  In any case, her visa had expired by effluxion of time.

The applicant appealed against that decision to the Federal Court (Kiefel J).  Her Honour concluded that the application should be dismissed because the Court was not obliged to make any finding about the dispute with the University, and that the only question for determination was whether a condition of the visa had not been satisfied. 

The applicant applied for leave to appeal to the Full Court of the Federal Court (Lee, Merkel and Hely JJ).  She contended there that the Tribunal erred in refusing to exercise a discretion to make a determination before the proceedings against the University had been completed.  She argued that it should have deferred determination of the application for review until after those proceedings were completed, rather than making a finding against her.

The Full Court unanimously held that, if the Tribunal had such a discretion, which was doubtful, the applicant had not advanced grounds to demonstrate that the Tribunal's exercise of it involved any error of law.  The Full Court accepted Kiefel J's assessment of the application for adjournment as being doomed to fail, and accordingly refused leave to appeal.

The applicant seeks to argue in this Court that the Full Court was in error in upholding the primary judge's decision on the basis that it lacked utility.  The applicant identifies the issue which she wishes to raise as being whether the Federal Court proceedings lacked utility, when, at the time of the Tribunal's decision, the Migration Regulations did not allow a person such as the applicant to apply for another student visa, whereas a subsequent amendment of the Migration Regulations now allows a person such as the applicant to apply for another student visa.

The applicant can show no jurisdictional or other error of law that would justify a grant of special leave to appeal.  The application must, therefore, be dismissed.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application and I publish the disposition signed by Justice Callinan and myself.

AT 8.46 AM THE MATTER WAS CONCLUDED