Case: Ogawa v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal [2006] FCA 1694
Outcome: cited
There is an old adage that the road to hell is paved with good intentions. These proceedings indicate that it is not only that destination that is paved with good intentions, but also the pathway to a courthouse. By that I mean, that when one reflects upon the history of this case, and in particular the observations that Cowdroy J made in his reasons for judgment in Ogawa v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal (2006) FCA 1694 , one sees there particular sources of grievance that, at a humane level, one might see Ms Ogawa having in respect of the saga of her dealing with the immigration authorities of the Commonwealth. 2 Those grievances, though, do not translate into actionable causes of action against either of the Respondents in this proceeding. In between when this proceeding was first instituted in the Federal Magistrates Court in June last year and today, there have been many "good intentions", in terms of adjournments granted for the purpose of seeking legal advice, and in terms of the advance notice of the nature of the application to be made today by the Respondents, and the detailed reasons for it. Earlier in time one sees many other instances of "good intentions" in the dealings between the Commonwealth and Ms Ogawa, even though it must be said, as Cowdroy J observed, some of those good intentions have translated into sources of grievance, which the present proceeding indicates, persist to this day. 3 The detailed background to the case is to be found in a chronology which was helpfully provided at a directions hearing last year by the Respondents, and which is attached to these reasons as Exhibit 1. 4 By reference to that chronology and other material filed, one sees that the proceeding has its origins in the request that was made by Ms Ogawa to the Immigration Department's Ministerial Intervention Unit for intervention by the Minister in respect of her migration affairs, pursuant to s 351 of the Migration Act 1958 ("Migration Act"). That request was withdrawn by, it seems, the First Respondent, without any apparent instruction from Ms Ogawa so to do. That particular event became the subject of litigation before a Federal Magistrate, and later before Cowdroy J, in the decision to which I have already made reference. One finds in Cowdroy J's Reasons for Judgment further detail concerning the earlier background of today's proceeding. 5 It might also be noted that since Cowdroy J gave his decision on 15 December 2006 the following events have occurred. On 25 June 2007, on the initiative of another agency within the Immigration Department, action was taken pursuant to s 351 of the Migration Act to grant to Ms Ogawa a sub-class 574 (post graduate research sector) visa which remained valid until 31 August 2007, and on 30 August 2007 to grant to her a sub-class 010 (bridging A) visa. 6 In the application that Ms Ogawa filed initially in the Federal Magistrates Court and which has since been transmitted to this Court by order of Federal Magistrate Burnett, the following relief is sought: (a) firstly, a declaration that Ms Ogawa's request under s 351 of the Migration Act be deemed to be being considered by an officer of the Ministerial Intervention Unit of the Department of Immigration at all times since the request was made; (b) secondly, certiorari, quashing the decision of the First Respondent; (c) thirdly, mandamus, directing the First Respondent to consider and determine Ms Ogawa's request according to law; (d) fourthly, an order that the Second Respondent pay damages to Ms Ogawa or, in the alternative, that the First Respondent pay damages to Ms Ogawa; (e) fifthly, an order that, pursuant to s 51A of the Federal Court of Australia Act 1976 ("the Act "), the Second Respondent pay interest to Ms Ogawa or, in the alternative, the First Respondent pay interest to Ms Ogawa. 7 Ancillary relief and costs are also sought. The grounds of the application, in summary, are as follows: (a) firstly, that the First Respondent had no power or authority to make the decision; (b) secondly, that the First Respondent knew that: (i) she had no power or authority or recklessly disregarded the means of ascertaining the extent of her power or authority to make the decision; and (ii) that her conduct in withdrawing the request by Ms Ogawa had a foreseeable risk of harm to her; (c) thirdly, that the Second Respondent is vicariously liable for the First Respondent's conduct and, finally; (d) fourthly, "such and other grounds that are not currently within the knowledge of the unrepresented Applicant." 29 That observation has particular resonance in the circumstances of the present case. There is not a scintilla of evidence in any of the material which has been read before me or, for that matter, in the circumstances as detailed by Cowdroy J in his earlier decision, which in any way provides any support for the view that any Commonwealth officer has acted otherwise than honestly and without any intention at all to act in any way maliciously as against Ms Ogawa. Even assuming that there were jurisdiction in respect of the judicial review and declaratory aspects of this case, and assuming that one might regard the damages claim as an associated matter, it is utterly hopeless.