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PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – applicant unable to show sufficient doubt as to correctness of judgment – application refused

Ogawa v Minister for Immigration & Multicultural & Indigenous Affairs [2004

Ogawa v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 315 (26 November 2004)
Last Updated: 29 November 2004

FEDERAL COURT OF AUSTRALIA


Ogawa v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 315


PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – applicant unable to show sufficient doubt as to correctness of judgment – application refused




Administrative Decisions (Judicial Review) Act (1977) (Cth)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 116, 348, 353
Federal Court Rules , O 3 r 2(2), O 19 r 3, O 20 r 2, O54B r 5





House v R (1936) 55 CLR 499 cited

Sali v SPC Ltd (1993) 116 ALR 625 cited

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited






MEGUMI OGAWA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q150 OF 2004



LEE, MERKEL & HELY JJ
26 NOVEMBER 2004
PERTH (HEARD IN BRISBANE)


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q150 OF 2004


BETWEEN: MEGUMI OGAWA
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: LEE, MERKEL & HELY JJ
DATE OF ORDER: 26 NOVEMBER 2004
WHERE MADE: PERTH (HEARD IN BRISBANE)


THE COURT ORDERS THAT:

1. The application for leave to appeal be refused.

2. The applicant pay the respondent’s costs.






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 Q150 OF 2004


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


JUDGE: LEE, MERKEL & HELY JJ
DATE: 26 NOVEMBER 2004
PLACE: PERTH (HEARD IN BRISBANE)


REASONS FOR JUDGMENT

THE COURT:

1 This is an application for leave to appeal from a judgment of a Judge of this Court, (Kiefel J). The judgment dismissed an application by the applicant under the Administrative Decisions (Judicial Review) Act (1977) (Cth) and under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") that set aside a decision of a delegate of the respondent ("the Minister") that the visa held by the applicant be cancelled.

2 The applicant is a citizen of Japan. In 1999, as the holder of a Master of Laws conferred by the Yokahama National University, the applicant applied for a visa to travel to Australia to enrol at the University of Queensland in a course of study for a doctorate of laws. The applicant’s field of specialisation concerned issues of copyright involving broadcasting organisations.

3 In November 1999, the applicant was granted a visa permitting her to travel to Australia and reside therein for the purpose of her studies until 15 March 2004.

4 In November 2001, whilst in the course of her studies at the University of Queensland, the applicant was granted a scholarship by the University of Melbourne ("the University") and as a result her enrolment in doctoral studies was transferred to the University. Whilst a student in Australia the applicant prepared a number of articles on copyright accepted for publication in specialist journals in the United Kingdom, Australia and Japan.

5 In 2002 differences arose between the applicant and the University as to the appointment of an appropriate supervisor for the applicant’s doctoral thesis. In December 2002 the University determined that enrolment of the applicant in her course of study would not be renewed after 24 December 2002.

6 The applicant contested the purported termination of enrolment and sought administrative review on that decision. The applicant did not accept that her enrolment as a doctoral student had been terminated and contended that the University was in breach of its contractual obligations. In September 2003 the applicant commenced a proceeding in the Queensland Registry of this Court against the University, seeking, inter alia, a declaration that the purported termination of enrolment had been of no effect and an order for the payment of damages. At some point thereafter the proceeding was transferred to the Federal Magistrates Court at its Victoria registry.

7 On 29 September 2003, pursuant to s 116 of the Migration Act 1958 (Cth) ("the Act"), a delegate of the Minister cancelled the visa held by the applicant on the ground that she had not maintained enrolment in a registered course and, therefore, was in breach of "condition 8202". The reasons provided by the delegate for that decision noted that the Act did not give the delegate a "discretion to consider whether the circumstances and reasons for her non-compliance were due to exceptional circumstances beyond the control of the visa holder".

8 On 8 October 2003 the applicant applied under the Act for review by the Tribunal of the delegate’s decision.

9 On 9 June 2004 the Tribunal set aside the decision of the delegate. In the reasons for its decision the Tribunal observed that the question whether the applicant was enrolled in a registered course at material times would be a principal issue for determination in the proceeding commenced by the applicant against the University. The Tribunal formed the view that it would be inappropriate for the Tribunal to make a finding of fact on that issue in advance of judicial findings. Accordingly, the Tribunal concluded that it was unable to find that the applicant had breached condition 8202 and set aside the decision of the delegate.

10 Notwithstanding the decision of the Tribunal, the visa held by the applicant had expired on 15 March 2004 by effluxion of time. It followed that from that date the applicant did not hold a "substantive" visa and was no longer eligible to apply whilst in Australia for the grant of another visa of the same class. The Tribunal acknowledged that it would be a harsh result if the applicant could not apply for such a visa if it were to be found that the applicant had been duly enrolled at material times.

11 On 30 June 2004 the applicant lodged an application in this Court seeking orders for judicial review of the Tribunal’s decision. On 19 July 2004 the Minister filed a motion seeking an order for summary dismissal of that proceeding under O 20 r 2 and O 54B r 5 of the Rules of the Federal Court ("the Rules"). The motion was made returnable on 23 July 2004. It does not appear that service of the motion was effected within the time provided by O 19 r 3. (See: O 3 r 2(2)). The respondent did not seek an order that time for service of the motion be abridged.

12 On 23 July 2004 the applicant, appearing on her own behalf, sought an adjournment of the hearing to allow her to prepare submissions in opposition to the motion. The applicant had filed an affidavit on 22 July 2004 in which she deposed to a lack of time to prepare her case.

13 Her Honour decided that consideration of the application for an adjournment of the motion could not be divorced from examination of the utility of the applicant’s proceeding.

14 Her Honour said it would be "most regrettable" if the applicant could not apply for a visa to allow her to prosecute her case against the University but the only question for the decision by her Honour was whether the application commenced by the applicant in this Court had any prospect of success.

15 On its face, the application to this Court by the applicant for judicial review of the decision of the Tribunal that set aside the decision of the delegate that was adverse to the applicant, appears to lack utility.

16 The applicant submitted to her Honour, and to this Court, that the Tribunal erred in failing to find whether the applicant remained enrolled in a registered course. The applicant asserted that determination of that issue was a "condition precedent" to the making of a decision by the Tribunal. Her Honour pointed out that the Tribunal assumed the answer to that question to be in the applicant’s favour. Accordingly the Tribunal was bound to decide that the decision of the delegate had to be set aside. Her Honour concluded that the proceeding commenced by the applicant in this Court had no prospect of success given that grounds for review relied upon by the applicant disclosed no error on the part of the Tribunal. Accordingly, her Honour ordered that the proceeding be dismissed.

17 In the submissions made to this Court the applicant appeared to contend that the Tribunal erred in the exercise of a discretion by declining to refrain from making a determination on the review application until the applicant’s claims against the University had been determined.

18 The applicant submitted that upon the Tribunal deciding that it was inappropriate for the Tribunal to decide whether the applicant had maintained enrolment in a registered course, the Tribunal should have deferred determination of the application for review until that question of fact had been determined judicially in the proceeding commenced by the applicant against the University.

19 If the Tribunal had so acted, it was said, the "bridging" visa held by the applicant, which allowed her to remain in Australia until 28 days after a decision was made by the Tribunal, would have continued and the applicant could have prosecuted her case against the University to obtain that finding of fact. The applicant now holds a "bridging" visa allowing her to remain in Australia until 28 days after the application to this Court for judicial review of the Tribunal’s decision has been determined.

20 If the Tribunal had such a discretion, which may be said to be doubtful given the terms of ss 348 and 353 of the Act, no ground has been advanced by the applicant to show how the exercise of the discretion involved error on the part of the Tribunal. (See: House v R (1936) 55 CLR 499 at 504-505).

21 Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review by a Full Court and, further, that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. (See: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).

22 It may be assumed that in the circumstances of this case the applicant would have no difficulty in satisfying the second requirement. However, the applicant has been unable to show that the judgment below is attended with sufficient doubt as to its correctness to warrant the grant of leave to appeal therefrom.

23 It may be accepted that ordinarily an application by an unrepresented party for the adjournment of a motion brought on short notice seeking orders dismissing that party’s proceeding would be granted. Refusal of such an application may raise an argument as to whether procedural fairness had been accorded to that party and, therefore, doubt as to the correctness of the ensuing judgment.

24 But this is not such a case. Her Honour determined that an adjournment should not be granted because the application for judicial review commenced by the applicant was, on its face, doomed to fail. It has not been shown that her Honour’s assessment of the prospect of success of the application could be said to be wrong. In those circumstances it does not appear that the discretion exercised by her Honour in refusing the adjournment resulted in a denial of justice to the applicant. (See: Sali v SPC Ltd (1993) 116 ALR 625 per Brennan, Deane, McHugh JJ at 628-629). It follows that leave to appeal must be refused.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.


Associate:

Dated: 26 November 2004




The Applicant appeared in person



Counsel for the Respondent: J Lo



Solicitor for the Respondent: Clayton Utz



Date of Hearing: 8 November 2004



Date of Judgment: 26 November 2004
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