Ogawa v Minister for Immigration - [2006] FMCA 1039

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The names of the delegates of the Minister referred to in this decision are not to be published or otherwise communicated to a third party.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 5^th 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 19^th 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 25^th 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 24^th November 1999 as the holder of a student visa (Temporary) (Class TU),…

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.

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Details

Case: [2006] FMCA 1039
Decision Date: 21 July 2006

CaseChat Overview and Summary

The applicant, a Japanese national, sought judicial review of a decision by the Minister for Immigration to cancel his visa. The Federal Court was tasked with determining whether the Minister’s decision was lawful, reasonable, and procedurally fair. The primary concern was whether the Minister had correctly interpreted the Migration Act 1958 (Cth) and applied it in accordance with the relevant principles of administrative law.

The court examined whether the Minister’s decision was based on relevant considerations and whether there were any errors in the application of the law. The applicant argued that the Minister had failed to consider his personal circumstances, including his family ties in Australia and his contributions to the community. The court needed to decide whether these factors warranted a different outcome under the Migration Act. The court also considered the principle of procedural fairness, assessing whether the applicant had been given a fair opportunity to respond to the allegations against him.

In determining the matter, the court found that the Minister had acted within his lawful powers and had not made any errors in the interpretation or application of the Migration Act. The court held that the Minister had considered the relevant factors and had made a decision that was both lawful and reasonable. The applicant’s arguments regarding his personal circumstances did not alter the outcome as they did not meet the threshold for exemption under the Act. The court also found that the principles of procedural fairness had been observed, as the applicant had been given a fair opportunity to respond to the allegations. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the Minister's costs. The identities of the delegates involved in the decision were protected from disclosure to third parties.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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