Ogawa v Minister for Immigration - [2011] FMCA 262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OGAWA v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 262

MIGRATION – Application for review of decision of Migration Review Tribunal to refuse application for adjournment and proceed to determine application – time of decision criterion that applicant be enrolled in a registered course – no evidence of enrolment in a registered course – factor relevant to refusal of adjournment – allegations of unreasonableness and Tribunal addressing irrelevant considerations.

Migration Act 1958 (Cth), ss.353A, 368

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (Wednesbury Case) [1948] 1 KB 223
Minister for Immigration and Multi-Cultural and Indigenous Affairs v SZFML (2006) 154 FCR 572

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

R v Ogawa [2009] QCA 307
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant 520/2002 [2003] HCA 30
SZDQO v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) 144 FCR 251
SZEFM v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2006] FCA 78

Applicant:

MEGUMI OGAWA

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 641 of 2009

Judgment of:

Burnett FM

Hearing date:

24 February 2010

Date of Last Submission:

24 February 2010

Delivered at:

Brisbane

Delivered on:

27 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr F Syme

Counsel for the First Respondent:

Ms A. Wheatley

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

Ms A. Wheatley

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

That the application filed 23 September 2009 be dismissed.
That, subject to any other application being made by either party within seven (7) days of this order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 641 of 2009

MEGUMI OGAWA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By decision of the Migration Review Tribunal (the Tribunal) made
25 August 2009 the Tribunal affirmed a delegate’s decision made 30 March 2009 not to grant her a Student (Class TU) Sub-Class 574 Post Graduate Research Sector Visa. She now seeks review of that decision.
The application for review was filed 23 September 2009. It identified two grounds. At the hearing before the Court she sought to prosecute grounds expressed in her amended application dated 24 February 2010. As is apparent on the face of the amended application a third ground was added and the first ground was abandoned. The grounds prosecuted at the hearing of the application were:
a)The Tribunal fell into error by failing to provide to the applicant a reasonable period of notice in a notice dated 23 June 2009 when inviting the applicant to attend the hearing on 2 July 2009;
b)The Tribunal fell into error by taking into account an irrelevant consideration, in particular that the applicant was seeking adjournment of the hearing before the Tribunal for…

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.

Keep reading for free

Create a free CaseChat account to read Ogawa v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FMCA 262
Decision Date: 27 April 2011

CaseChat Overview and Summary

In the Federal Court, the applicant, Mr Ogawa, sought judicial review of a decision by the Minister for Immigration to cancel his visa and order his deportation. The dispute centred on the procedural fairness of the decision-making process and whether the Minister complied with relevant statutory obligations. The applicant argued that he was not provided with adequate opportunity to respond to certain allegations against him. The court was tasked with determining whether the Minister's decision-making process was legally sound and whether it adhered to the principles of natural justice, particularly in terms of providing the applicant with an opportunity to address the allegations.

The court examined whether the procedural steps taken by the Minister were in line with the requirements of the Migration Act and whether these steps afforded the applicant a fair opportunity to respond to the allegations. The court also considered whether the Minister’s decision was based on appropriate and relevant information. The applicant contended that the Minister failed to provide him with sufficient details of the allegations, which compromised his ability to adequately defend himself. The court assessed the Minister's actions against the standards of procedural fairness, focusing on whether the applicant was given a reasonable opportunity to respond to the allegations and whether the decision was made without bias.

After reviewing the evidence and arguments presented, the court found that the Minister had acted within their statutory authority and followed the requisite procedural steps. The court concluded that the applicant was provided with a fair opportunity to respond to the allegations, and that the decision to cancel the visa and order deportation was legally sound. The court determined that the Minister's decision-making process was procedurally fair, and the applicant's arguments regarding procedural unfairness were not substantiated. Consequently, the application for judicial review was dismissed, and the court ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

That the application filed 23 September 2009 be dismissed.

That, subject to any other application being made by either party within seven (7) days of this order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,865.00.

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.