Ogawa v Secretary, Department of Education, Science & Training

In the case of Ogawa v Secretary, Department of Education, Science & Training, the applicant sought judicial review of decisions allegedly made by the Secretary in relation to the University of Melbourne’s compliance with the National Code under the Education Services for Overseas Students Act 2000 (Cth). The applicant claimed that the Secretary failed to investigate her complaints regarding the university’s grievance handling and dispute resolution processes, which she believed constituted a breach of the National Code. The application was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), challenging both decisions and non-decisions by the Secretary.

The primary legal issues before the court were whether the decisions alleged by the applicant were reviewable under the ADJR Act and whether the applicant had standing to bring the application. The court considered whether the Secretary’s actions or inactions constituted a "decision" under section 5 of the ADJR Act and whether the applicant was "aggrieved" by such decisions. The court also examined whether the Secretary’s decisions, if any, were made under the relevant statute, and if the applicant had a sufficient interest in the subject matter beyond that of a member of the public.

The court found that the decisions alleged by the applicant were not reviewable under the ADJR Act as they did not constitute decisions under an enactment. Specifically, the court noted that section 43 of the ESOS Act, which the applicant argued was relevant, only regulated the conduct of the Secretary in the event of a possible breach of the National Code and did not mandate specific decisions. Therefore, the Secretary’s inaction did not amount to a reviewable decision. Additionally, the court determined that the applicant did not have standing to bring the application as she did not have a sufficient interest in the subject matter beyond that of a member of the public.

In light of the above, the court dismissed the application and the associated motions. It further ordered that the applicant pay the respondents’ costs of the proceedings.