Ogawa v Minister for Immigration
[2006] FMCA 1039
•21 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGAWA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1039 |
| MIGRATION – Visa – Migration Review Tribunal – application for review Migration Review Tribunal affirming delegate’s decision that the applicant is not entitled to a Bridging visa – application for declaration that the applicant holds a Bridging E (Class WE) visa – application for order in the nature of mandamus to seek release of applicant from Immigration detention. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116, 189, 476 |
| Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 Re MIMIA; Ex parte Applicants 134/2002 (2003) 211 CLR 441 Re Nicholls and Anor; Ex parte Trinh [2004] HCA Trans 77 Shreshta v Minister for Immigration & Anor [2005] FMCA 1626 |
| Applicant: | MEGUMI OGAWA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1633 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 July 2006 |
| Date of last submission: | 20 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2006 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Kinslor |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,000.00.
The names of the delegates of the Minister referred to in this decision are not to be published or otherwise communicated to a third party.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1633 of 2006
| MEGUMI OGAWA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal dated 5th June 2006 affirming the decision of a Delegate of the Minister that the Applicant is not entitled to a Bridging E (Class WE) visa. By means of an Amended Application, filed by leave at the hearing, the Applicant also seeks to challenge the fact that she is currently in immigration detention. The Applicant has been in detention since 19th May 2006. It was on that date, too, that she applied for a further Bridging visa.
It is relevant that the Minister, who is the First Respondent to the application, intends to remove the Applicant from Australia on the 25th of this month, which is next Tuesday.
The Applicant seeks a declaration that she holds a Bridging E (Class WE) visa. She also seeks an order in the nature of mandamus requiring the Minister to release her from immigration detention.
Background
The relevant details of the background to this matter are set out in paragraphs 1 to 12 of the Applicant’s Written Submissions, which I adopt and read on to the record with minor modifications.
The Applicant is a citizen of Japan who arrived in Australia on 24th November 1999 as the holder of a student visa (Temporary) (Class TU), Subclass 560. The Applicant’s student visa was valid until
15th March 2004.On 29th September 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, to use the title of the Minister at that time, cancelled the Applicant’s student visa under s.116(1)(b) of the Migration Act 1958.
The Applicant applied for a review of the delegate’s decision to cancel her visa to the Migration Review Tribunal. On 9th June 2004 the Tribunal made a decision to set aside the delegate’s decision to cancel the Applicant’s visa on the basis that it was not satisfied that the Applicant had breached condition 8202 of her student visa, as had been found by the delegate.
The difficulty that was occasioned as a result of the Tribunal’s decision is that at that stage the Applicant’s student visa had already expired on 15th March 2004. It is regrettable that the Tribunal had not handed down its decision within the time limit of the original student visa because, as I said, the student visa had already expired.
On 30th June 2004 the Applicant lodged an application for judicial review of the Tribunal’s decision at the Federal Court of Australia. On 6th July 2004 the Applicant was granted a Bridging E visa, subclass 050. The decision record states that the Applicant satisfied the following criteria for granting the visa:
a)has an outstanding request for Ministerial Intervention under section 345, 351, 391, 317 or 454 and
b)has applied, or the Minister has applied, for judicial review of a decision relating to a substantive visa.
The visa was granted on the basis that the Applicant met the second of the above requirements as it was granted to remain, in effect in accordance with clause 050.512 of the Migration Regulations 1994. Those regulations relevantly read:
In the case of a visa granted to a non-citizen to do with paragraph 050.212(4)(a) or (d) bridging visa:
(a) coming into effect on grant; and
(b) permitting the holder to remain in Australia until
(ii) …28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed.
On 23rd July 2004 the Federal Court dismissed the Applicant’s judicial review application. The Applicant appealed to the Full Court of the Federal Court. On 26th November 2004 the Full Court of the Federal Court refused the Applicant’s application for leave to appeal.
On 22nd December 2004 the Applicant filed an application with the High Court of Australia in relation to the decision of the Full Court of the Federal Court seeking leave to appal.
The Applicant claims that her High Court appeal is on-going. On 19th May 2006 the Applicant was detained in immigration detention under s.189 of the Migration Act. Under that section if a relevant officer of the First Respondent Minister knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. An unlawful non-citizen is a citizen not holding a valid Australian visa.
It is the Respondent’s position that the Applicant was an unlawful non-citizen on 19th May 2006 and continued to be an unlawful non-citizen on account of her Bridging E visa having expired on 17th February 2005, which is 28 days after a decision of the Registry of the High Court of Australia, that the Applicant’s application before the High Court was deemed abandoned by operation of Rule 41.10.4 of the High Court Rules.
On 19th May 2006 the Applicant lodged an application for a Bridging E visa with the Department of Immigration and Multicultural Affairs. That application was refused on that same date, 19th May 2006. The Applicant then sought a review of that decision by the Migration Review Tribunal. The Tribunal affirmed the decision of the Delegate of the Minister on 5th June 2006.
Issues
The Applicant claims that the Bridging E visa that was granted to her on 6th July 2004 remains in effect. This visa was valid until the expiry of 28 days after the completion of her judicial review proceedings, including proceedings on appeal in relation to a migration matter. Her claim is that the visa was never cancelled and that it therefore remains in effect.
The Respondent submits that the Applicant’s visa ceased on
17th February 2005, being 28 days after 20th January 2005, the date when the High Court deemed the Applicant’s application to that court to have been abandoned.The Applicant also claims that the decision of the Migration Review Tribunal made on 5th June 2006 that the Applicant did not have an ongoing request to the Minister for Ministerial intervention under the provision of s.351 of the Migration Act is the subject of a jurisdictional error. The basis of that decision is set out in paragraph 76 of the Tribunal’s decision which is set out on page 217 of the Court Book.
The Respondents submit that no jurisdictional error is shown.
The first issue therefore that needs to be decided relates to the Applicant being held in immigration detention. At the outset of the hearing yesterday it was made clear on behalf of the Applicant that it was not sought to challenge a situation of a reasonable suspicion of the Applicant being an unlawful non-citizen under s.189 of the Migration Act.
In other words, it was not sought to go back ab initio to the Applicant having been taken into immigration detention on 19th May 2006. What was sought, however, was that in reliance on the decision in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 that a declaration should be made that the Applicant was not an unlawful non-citizen and that therefore an order in the nature of mandamus should be made requiring the Minister to release the Applicant from Immigration detention forthwith.
The first issue therefore that needs to be decided is the question of whether or not the Applicant’s Bridging visa continues in respect of her application for judicial review of the early decision of the Migration Review Tribunal. There was admitted into evidence, without objection, a letter from a Deputy Registrar of the High Court of Australia referring to certain proceedings that had been commenced by the Applicant. The relevant parts of that letter I will read on to the record:
I confirm that the application is deemed to be abandoned by operation of Rule 41.10.4 and has been so abandoned since 20 January 2005.
On 23 March 2005, the applicant filed the summons to which you refer in your letter. It is expected that this summons will be listed for hearing some time during the May sittings of the Court. I will be in touch with you when a date has been fixed.
It should be made clear that a Bridging visa of the type held by the Applicant was one which remained in force until the completion of migration proceedings or judicial review proceedings, including proceedings on appeal, are completed and 28 days thereafter. It follows that if an applicant’s application or appeal is finalised, whether successfully or not, at 28 days thereafter the visa will cease.
What must happen within the 28 day period if an applicant is unsuccessful is that an appeal must be filed so that the proceedings are ongoing. Upon the conclusion of those proceedings, however that may occur, then time begins to run for the expiry of the visa.
In my view the decision by the High Court of Australia deeming that the Applicant’s application was abandoned on and from 20th January 2005, set the time of 28 days running. The evidence before me is that there was no further relevant migration related proceeding in force within the period from 20th January 2005 to 17th February 2005.
Whilst there is reference in the letter which formed Exhibit 2 in the proceedings before me to the filing of a summons by the Applicant on 23rd March 2005, that summons cannot have a retrospective effect as it was filed more than 28 days after the deemed abandonment on 20th January 2005.
As such I am satisfied that the original Bridging visa came to an end on and from 17th February 2005. Now, in the written submissions on behalf of the Respondent, reference is made to other proceedings commenced in the Federal Court. Those proceedings however were interlocutory in nature and related to the filing of, or whether or not the Applicant cold be permitted to file other proceedings.
They are not proceedings relating to a migration application as such, and in my view they have been correctly held to be interlocutory and they do not, to my mind, have any effect on the finding that the Bridging visa came to an end 28 days after the abandonment of the application as deemed by the High Court on 28th January 2005.
It must follow, therefore, that the declaration in that respect sought by the application cannot be made and in the light of the fact that such a declaration relating to the Applicant’s Bridging visa cannot be made, therefore it is not appropriate to issue an order in the nature of mandamus relating to the Applicant being held in immigration detention as a result.
There is, however, a second part of the Applicant’s claim. That relates to the seeking of a Bridging E visa by the Applicant in relation to an application for Ministerial intervention under the provisions of s.351 of the Migration Act. The claim is that that application was never resolved and that it was not withdrawn by the Applicant or otherwise decided by the Minister.
The Tribunal dealt with this at page 217 of the Court Book in paragraph 76 of the Tribunal decision. The Tribunal said:
The Tribunal is not satisfied that that at the time of application the applicant was the subject of a request for Ministerial Intervention that was being assessed by an officer against the Minister’s guidelines. The Tribunal is unable to place weight on the fact that the applicant alleges she was not aware that her request for Ministerial Intervention had been withdrawn. The Tribunal is also unable to consider whether the Department wrongly or rightly withdrew the request.
The question for the Tribunal to consider is whether the application was being assessed against the Minister’s guidelines, not whether it was correctly or incorrectly withdrawn. The Tribunal has no choice but to find that at the time of application and decision the applicant did not have a request for Ministerial Intervention that was being assessed by an officer of the Department against the Minister’s guidelines.
The Respondents refer to this matter in their submission at paragraph 23 in the following term:
The Tribunal noted that it was not addressing whether the Department wrongly or rightly withdrew the request; it was simply a question of whether the application was being assessed against the Minister’s guidelines. That was a question of fact for the Tribunal and it was entitled to decide that question as it did.
The Respondents go on to submit that there is no entitlement under s.351 of the Migration Act to have an application considered by the Minister. There is no relevant duty and I am referred to sub-s.351(7) of the Migration Act and to the decisions of Re MIMIA; Ex parte Applicants 134/2002 (2003) 211 CLR 441 at [48] and also at [98] - [110], and also to the decision in Re Nicholls and Anor; Ex parte Trinh [2004] HCA Trans 77 (15 March 2004) at pages 10 -11.
It is important to consider what actually took place in respect of this earlier application under s.351. The Applicant had sought Ministerial Intervention but had also sought judicial review. The Court Book contains some, but regrettably not all of the relevant emails, but the email from one S[1] of the Ministerial Intervention Unit to the Applicant on 30th September 2005 which appears at page 7 of the Court Book, sets out the relevant details. I will read that on to the record:
[1] The name of this person is not to be published. See Order 3.
Dear Ms Ogawa
Your email has been forwarded to me for reply.
In an email dated 22 September 2005 to Ms P[2] (another officer of the Respondent Department) – you have stated that:
“In the circumstances, I wish to prepare the documents to the Minister for consideration of the Ministerial Intervention after my judicial review in relation to the cancellation of my student visa is concluded.”
[2] The name of this person is not to be published. See Order 3.
The email goes on to say:
Given your advice above, and your email below, the Department will withdraw your request for Ministerial Intervention under s.351 at this time. No further action will be taken in respect of the s.351 request currently before the Department.
If in the future you wish to request the Minister to intervene in your case under s.351 of the Migration Act 1958 it is open for you to make such a request.
Regards.
It is upon that that the Migration Review Tribunal, at paragraph 76 of the decision to which I have previously referred, based its finding that at the time of application and decision the Applicant did not have a request for Ministerial Intervention that was being assessed by an officer of the Department against the Minister’s guidelines. The Tribunal made it clear that it was not able to consider whether the Department wrongly or rightly withdrew the request.
That, to my mind, is unfortunately correct. I would say, however, that it is quite clear from the material that appears in Ms S’s[3] email to the Applicant and the quote from the Applicant of 22nd September 2005, from the Applicant to Ms P[4] of the Department, that it was never the intention of the Applicant to withdrew her request for Ministerial Intervention under the provisions of s.351 of the Migration Act.
[3] Not to be published.
[4] Not to be published.
It is quite clear that the Applicant was asking for that application for Ministerial Intervention to be deferred until the conclusion of the proceedings for judicial review. It was the action of the First Respondent Minister, or the delegate thereof, in the Ministerial Intervention Unit, to bring the Applicant’s application for Ministerial Intervention to an end.
That was not what the Applicant sought. She sought a deferment, or a postponement, or an adjournment. She did not seek to withdraw it. She did not seek to regard it as having been abandoned. In my view the Ministerial Intervention Unit of the officer of the First Respondent Minister, or the Department of the First Respondent Minister, cannot escape criticism.
On the material before me, bringing the Applicant’s application for intervention to an end by the Department was both peremptory and high handed and was quite contrary to what the Applicant sought. It was not an unreasonable request on behalf of the Applicant. The Applicant had been made aware that the Minister considered it inappropriate for Ministerial Intervention to be considered at the time that judicial review proceeding were ongoing.
What the Applicant asked, quite reasonably, was for that request to be deferred until she had completed her quest to obtain a favourable order by means of the process of judicial review. It is easy to understand, and as I said, it is not at all unreasonable. In my view the decision by the Ministerial Intervention Unit to regard that application as at an end was, to my mind, unreasonable and in some circumstances not fair to the Applicant.
Does that mean that the decision of the Migration Review Tribunal was incorrect insofar as the Tribunal making a finding that it was not satisfied that at the time of application the Applicant was the subject of a request for Ministerial Intervention that was being by an officer against the Minister’s guidelines?
Unfortunately for the Applicant, in my view the Tribunal did not fall into error in doing so. The Tribunal made it quite clear that it was unable to place weight on the fact that the Applicant alleges she was not aware that her request for Ministerial Intervention had been withdrawn and that is a matter of fact for the Tribunal, and the Tribunal made it clear that it was unable to consider whether the Department wrongly or rightly withdrew the request.
In my view it is clear that the Department acted wrongly in doing so, but that was not a matter that the Tribunal was able to consider or take into account. The Tribunal, somewhat regretfully, went on to say that:
The Tribunal has no choice but to find that at the time of application and decision the applicant did not have a request for Ministerial Intervention that was being assessed by an officer of the Department against the Minister’s guidelines.
As a result, the Tribunal found that the Applicant did not meet the requirements of various sub-clauses as she had no application that was being assessed by an officer against the Ministerial guidelines and the Tribunal did not fall into error in finding that the Applicant was not the holder of a Bridging E (Class WE) visa as required by sub-cause 050.212(8) and the Tribunal did not fall into error in considering that the visa Applicant did not satisfy that sub-clause either at the time of application or the time of decision.
In my view, despite the unfortunate way in which the Applicant’s application for Ministerial Intervention was dealt with by the Minister’s office, the Tribunal did not fall into error.
It is not, however, a matter that can be left without comment as far as the earlier decision of the Tribunal is concerned, which is the decision of 9th June 2004. That, it may be recalled, was the earlier decision of the Tribunal which set aside the decision of the Delegate to cancel the Applicant’s student visa.
I have commented that this decision was not handed down until 9th June 2004. By that time the Applicant’s student visa had already expired on 15th March 2004. What happened is that the Tribunal handed to the Applicant a worthless victory. It set aside the decision to cancel a student visa after the time when the visa, had it not been cancelled, would already have expired. This, to my mind, placed the Applicant in a difficult, if not impossible, position.
Regrettably this is not the first time that the Migration Review Tribunal has delayed handing down a decision setting aside a decision to cancel a student visa until after that visa has already expired. I had cause to make critical comment of a similar decision in a matter of Shreshta v Minister for Immigration & Anor [2005] FMCA 1626 where I said at paragraph 46:
The Migration Review Tribunal effectively handed the Applicant a worthless victory by setting aside the cancellation of an expired visa too late to allow the Applicant even to apply for a new one.
In my view, there is a clear obligation on the Migration Review Tribunal to deal with applications for review to set aside a student visa in sufficient time to allow a successful outcome to be of some value to the Applicant. Setting aside a decision to cancel a visa, after the visa would normally have expired in the ordinary course of time, does not grant justice to an applicant and in my view the Migration Review Tribunal needs to give considerable attention to the time limits involved in student visas when dealing with applications of this case.
It is a matter of some concern that this is the second case that I have seen where the Tribunal has, in my view, failed in its obligation. Regrettably for the Applicant, my finding in respect of the earlier decision does not assist her in this case. In my view the situation, notwithstanding the rather unfortunate treatment she has received from, originally the Migration Review Tribunal and the Ministerial Intervention Unit of the Respondent Minister’s Department, leave her in the situation that there is no jurisdictional error, that her application must be dismissed.
Accordingly, I dismiss the application. I propose to order a transcript of my reasons for this decision. I note that there is a time limit in that this Applicant is facing an application, or in fact facing a decision by the Minister to remove her from Australia as of next Tuesday.
On the question of costs generally I note that this is not and has never been an easy matter to argue. It is far and away beyond the normal degree of complexity in respect of applications relating to review of decision of the Migration Review Tribunal. I am also mindful of the fact that these proceedings were brought on with a considerable degree of urgency.
The Applicant was taken into Immigration detention on 19th May 2006. The application was before the Court for the first time on 26th June and on that date it is my understanding that the Applicant’s legal advisors became involved, in fact a the request of the Court. The Court listed this matter for hearing with a considerable degree of urgency, bearing in mind the need to prepare the material which involved some degree of work, and in fact involved a rearrangement of the sitting arrangements of this Court in order that a Court could be made available yesterday so that the Applicant’s case could be heard and argued within a reasonable period of time.
I will place on record my appreciation for the way in which the Applicant’s legal advisor, Ms Kinslor and her associates have handled this matter, especially as they have taken the matter on at short notice, and the amount of work that has clearly been done in preparation of the Applicant’s case is, to my mind, most impressive and Ms Kinslor deserve the commendation of the Court for the way in which she handled the responsibilities. I place my personal appreciation on the record as well as that of the Court generally. This was not an easy case.
In the circumstances I am prepared to consider an application for costs above the normal scale, which would be $7,000.00 in the circumstances. I am not prepared, however, to go as far as the $10,000.00 which is sought by the legal advisors for the Minister.
I will make a non publication order in respect of the name of the Delegate of the Minister. Whilst it was necessary for me to read that out as part of the proceedings, I am not of the view that that is of any benefit to the general public in the publication of that decision or for the publication of any third party.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 21 July 2006
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