FEDERAL COURT OF AUSTRALIA

Ogawa v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 1501

Federal Court of Australia Act 1976 (Cth), ss 23, 25(2B)(bb)(ii), 25(2B)(bc)

Federal Court Rules 1979 (Cth), Order 35 rule 7

MEGUMI OGAWA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL

NSD 1388 OF 2006

COWDROY J

13 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The orders of the 22 August 2006 be set aside.

2.                  The question of costs be reserved.

3.                  These proceedings be set down for hearing on 27 November 2006.

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

REASONS FOR JUDGMENT

1                     By Notice of Motion filed on 29 October 2006 Ms Ogawa seeks an order, inter alia, that orders made by the Court on 22 August 2006 (‘the orders’) be set aside and in lieu, the matter be stood over for hearing to a date to be fixed and costs reserved. Ms Ogawa has provided a statement in support of her notice of motion dated 29 October 2006 and sworn 13 November 2006 in Court.

BACKGROUND

2                     On 22 August 2006 the Court ordered that Ms Ogawa’s appeal from the decision of Scarlett FM made on 20 July 2006 be dismissed. The Court ordered Ms Ogawa to pay the first respondent’s costs in the sum of $4000.

3                     The judgment of Scarlett FM which was appealed from related to an application made by Ms Ogawa for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) which affirmed the decision of the delegate of the first respondent that the applicant was not entitled to a Bridging Visa. The delegate had made the decision on 19 May 2006 to refuse the grant of such visa on the same day that Ms Ogawa had made an application for it. The Tribunal affirmed such decision on 5 June 2006 and on 20 July 2006 Ms Ogawa applied to the Federal Magistrates Court of Australia for a review of that decision.

4                     In fact there has been a long history of litigation between Ms Ogawa and the first respondent. Prior to her making application for the bridging visa which is the subject of these proceedings, Ms Ogawa previously held a Student Visa and a separate Bridging Visa.

5                     Ms Ogawa arrived in Australia, having been issued with a Student Visa. On 29 September 2003 such visa was cancelled pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). In fact, but for the cancellation, the Student Visa would have expired on 15 March 2004.

6                     Ms Ogawa appealed the decision to cancel her Student Visa and on 9 June 2004 the Tribunal determined to set aside the decision of the delegate. However, as the Tribunal’s decision was delivered after the expiration of the visa, the decision had no effect.

7                     On 30 June 2004 Ms Ogawa lodged an application for judicial review to this Court. Apparently she considered there was some merit in doing so, even though the decision of the Tribunal was in her favour.

8                     On 6 July 2004, Ms Ogawa was granted a Bridging E visa, subclass 050, on the basis that she had applied for judicial review of a decision relating to a substantive visa. Pursuant to the Migration Regulations 1994 (‘the Regulations’) clause 050.512, such visa was valid for a period of 28 days after the judicial review proceedings are completed.

9                     On 23 July 2004 this court dismissed her application for judicial review. Ms Ogawa then sought leave to appeal to the Full Federal Court against such decision, but on 26 November 2004 the Full Court refused her application for leave to appeal.

10                  Ms Ogawa then filed an application on 22 December 2004 in the High Court of Australia against the decision of the Full Federal Court to refuse leave to appeal. However, such application was deemed by Rule 41.10.4 of the High Court Rules 2004 to be abandoned. Such rule provides:

‘Where an unrepresented applicant does not file a written case and a draft notice of appeal within 28 days of the filing of the application, the application shall be deemed to be abandoned, unless, either before or after the expiration of that period, the Court or a Justice has otherwise ordered or directed.’

11                  As a result of the dismissal of the High Court proceedings, Ms Ogawa’s Bridging Visa expired 28 days thereafter, namely on 17 February 2005. On 19 May 2006 Ms Ogawa was detained in immigration detention pursuant to s 189 of the Act. On that day she made application for the Bridging Visa which is the subject of this notice of motion. Such visa was refused on that day.

12                  Thereafter Ms Ogawa sought review in the Tribunal and ultimately appealed, her appeal being determined by Scarlett FM as detailed above.

13                  On 21 July 2006 Ms Ogawa filed a notice of appeal in this Court against the decision of Scarlett FM alleging several errors in His Honour’s judgment, and a directions hearing was fixed on 22 August 2006 in respect of this appeal. Such hearing was arranged by video conference as Ms Ogawa was in Queensland. Despite the fact that the Court had made arrangements with her for that hearing, she declined to attend. In consequence the orders now appealed from were made and were entered on 25 August 2006.

14                  The Court was informed today that on 27 October 2006, Justice Callinan in the High Court proceedings ordered that the discontinuance of Ms Ogawa’s application for leave to appeal to the High Court be set aside and the application for leave be deemed to have been filed on or before 20 January 2005. The effect of such order would enable Ms Ogawa to proceed with her application for special leave to the High Court.

The notice of motion

15                  The words used by Ms Ogawa in her affidavit sworn 13 November 2006 and filed 29 October 2006 seem to relate to the words of Order 35 rule 7 of the Rules of this Court. Such rule provides:

 ‘(1)     The Court may vary or set aside a judgment or order before it has been entered.

 (2)    The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where:

 (a)    the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;

 (b)    the order was obtained by fraud;

 (c)    the order is interlocutory;

 (d)    the order is an injunction or for the appointment of a receiver;

 (e)    the order does not reflect the intention of the Court; or

 (f)    the party in whose favour the order was made consents.

 (3)    A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.

 (4)    Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.’

16                  The Court has considered the matters raised in Ms Ogawa’s affidavit. Much of the affidavit is unintelligible and the Court is not satisfied with Ms Ogawa’s recollection of the events of 22 August 2006. However, the Court does take note of the fact that Ms Ogawa claims that she was suffering from a mental disability at that time and has received advice from a clinical psychologist relating to an alleged psychiatric injury resulting from her detention. She claims that she is now ‘feeling better’ although she is unable to pay for a medical certificate.

17                  The respondent correctly indicated that there is no medical evidence before the Court to support Ms Ogawa’s claims of mental disability. The respondent has also pointed to the Court’s judgment delivered on 22 August 2006 when it found that Ms Ogawa had ‘chosen not to appear’ before it. The respondent has also drawn the Court’s attention to the fact that paragraph 10 of Ms Ogawa’s affidavit sworn today contains speculative claims concerning a deed of settlement signed on 6 September 2006, that is after her proceedings were dismissed. Such claims relate to her understanding that she could study at the University of Queensland in lieu of at the University of Melbourne if a Student Visa is issued to her.

18                  Ms Ogawa acknowledges that the only matter before this Court involves an appeal against the decision of Scarlett FM relating to a Bridging Visa and that this Court is not concerned with her appeal relating to a Student Visa. Nevertheless, she considers that a successful appeal against the decision of Scarlett FM may result in the setting aside of the orders that she pay $5500 in costs. She says that until the order for costs is set aside she will be barred from receiving a Student Visa.

19                  The orders dismissing the appeal were made in consequence of Ms Ogawa’s failure to appear. In these circumstances s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth)(‘the FCA Act’) empowered the Court to dismiss the appeal. However, s 25(2B)(bc) of the FCA Act empowers the Court to ‘vary or set aside an order under paragraph (ba) or (bb)’. Further, s 23 of the FCA Act provides:

‘23 The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds as the Court thinks appropriate.’

20                  I am satisfied that Ms Ogawa, who is not legally represented and who has apparently suffered a degree of mental impairment, should be permitted to have her appeal determined. If the orders are not set aside, she will be deprived of the opportunity of having her case brought before this Court. The Court’s discretion should be exercised in a manner that will achieve justice. No prejudice will result to the respondent if the orders are set aside. However if the orders remain in force, it is possible that an injustice could result. Whilst her explanation for failing to appear is not entirely satisfactory, the Court will order that the orders be set aside to afford her the opportunity of proceeding with her appeal. 

21                  For these reasons I make the orders as set out at the beginning of this judgment. 

Associate:

Dated:         13 November 2006