Ogawa v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1006

FEDERAL COURT OF AUSTRALIA

Ogawa v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1006

Migration Act1958 (Cth) s 114

MEGUMI OGAWA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 108 of 2004

KIEFEL J
BRISBANE
23 JULY 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q108 OF 2004

ON APPEAL FROM A DECISION OF THE MIGRATION REVIEW TRIBUNAL

BETWEEN:	MEGUMI OGAWA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	23 JULY 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The proceedings be dismissed.

2.        The applicant pay the respondent’s costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q108 OF 2004

ON APPEAL FROM A DECISION OF THE MIGRATION REVIEW TRIBUNAL

BETWEEN:	MEGUMI OGAWA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	KIEFEL J
DATE:	23 JULY 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The respondent seeks an order that these proceedings be dismissed on the basis that they are futile. 

2. The applicant is a citizen of Japan.  On 4 November 1999 she was granted a subclass 560 - Student Visa (of the class, Student (Temporary) (Class TU)) which was valid until 15 March 2004.  The applicant entered Australia on 24 November 1999 and commenced study for a Doctorate in Law at the University of Queensland.  In December 2001 she transferred her studies to the University of Melbourne (‘the University’).  Between December 2001 and November 2002 the applicant had some difficulties with her two supervisors.  It would appear that the University could not find her a supervisor and decided to allow her candidature to expire on 24 December 2002, after her appeal to the University’s Academic Board was dismissed.

3. After taking certain steps the Minister’s delegate cancelled the applicant’s visa, having satisfied himself that the applicant was not enrolled in a course of study as was required by condition 8202 of her visa.  The applicant applied to the Migration Review Tribunal to review that decision.  The Tribunal reviewed the delegate’s procedures.  It found that there had not been strict compliance with the procedures for cancelling the visa, but that there was no unfairness to the applicant.  However, the applicant’s claim against the University had not been determined.  It is presently the subject of proceedings in the Victoria Registry of the Federal Magistrates Court.  In these circumstances, the Tribunal felt that it could not make a definite finding that she had breached condition 8202 of her visa, and in those circumstances it determined to set aside the delegate’s decision. 

4. The effect of the Tribunal’s decision is that the applicant’s student visa is taken not to have been cancelled; see s 114 of the Migration Act1958 (Cth). However, it ceased to be valid as from 15 March 2004. The applicant’s Bridging E Visa was valid until only 28 days after the Tribunal decision which was given on 9 June 2004: see Schedule 2, Regulation 050.513 of the Migration Regulations 1994 (Cth).

5. As the applicant now points out, she has the difficulty that she wishes to continue her action in the Federal Magistrates Court, but she does not consider that she is in a position to apply for another visa.  If that is the case, that is most regrettable, but that is not a matter which is relevant to this Court in relation to the striking-out application.  The only question before me is whether the application has any prospects of success at all. 

6. Although the applicant succeeded before the Tribunal, she seeks review of its decision.  There is, however, no order that this Court could make, even if the applicant had a basis for review, which is itself problematical.  This Court would not remit the matter to the Tribunal since it could not make any order more favourable to the applicant, and the applicant’s grounds for review do not disclose any error.  The applicant alleges that the Tribunal was obliged to determine whether her purported termination was lawful, but that is not right.  The question that the Tribunal was addressing was whether or not she had breached condition 8202 of her visa, and it assumed that fact in her favour.  There was no obligation on the Tribunal to make any findings concerning the dispute between the University of Melbourne and the applicant, and it could certainly not have made any orders in consequence of that to overcome the difficulty which the applicant faced. 

7. I am therefore obliged to conclude that the application is misconceived and that the proceedings should be dismissed. 

8. The applicant in the proceedings will pay the respondent to the proceedings’ costs of those proceedings.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             6 August 2004

The Applicant:	In Person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 July 2004
Date of Judgment:	23 July 2004