Minister for Home Affairs v Ogawa

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 19 June 2019
• Neutral Citation: [2019] FCAFC 98
• Date: 19 June 2019

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Ogawa [2019] FCAFC 98

Appeal from:	Ogawa v Minister for Immigration and Border Protection [2018] FCA 62
File numbers:	QUD 116 of 2018
Judges:	COLLIER, REEVES, DAVIES, RANGIAH AND STEWARD JJ
Date of judgment:	19 June 2019
Catchwords:	MIGRATION – cancellation of visa on character grounds under s 501 of the Migration Act 1958 (Cth) – procedural fairness – obligation to have regard to information provided to Minister – obligation to apply active intellectual process to information – where no express reference to information in Minister’s reasons – whether Minister overlooked information – whether risk to the Australian community is a mandatory relevant consideration – whether error was material – whether unreasonable for the Minister to refuse to defer decision pending petition for pardon – appeal dismissed
Legislation:	Criminal Code Act 1995 (Cth) ss 474.15 and 474.17 Migration Act 1958 (Cth) ss 47, 50, 54, 55, 56, 57, 64, 69, 424, 476A, 501, 501CA and 501G Criminal Code 1899 (Qld) s 672A
Cases cited:	A v Pelekanakis (1999) 91 FCR 70 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Bondelmonte v Bondelmonte (2016) 259 CLR 662 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors [2013] FCAFC 148 He v Minister for Immigration and Border Protection (2017) 255 FCR 41 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 Le v Minister for Immigration and Border Protection (2015) 237 FCR 156 Minister for Home Affairs v Buadromo (2018) 362 ALR 48; [2018] FCAFC 151 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599; [2019] HCA 3 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 Tickner v Chapman (1995) 57 FCR 451 Win v Minister for Immigration, Multicultural and Indigenous Affairs (2001) 105 FCR 212
Date of hearing:	23 November 2018
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	140
Counsel for the Appellant:	Mr G Kennett SC with Ms A Wheatley
Solicitor for the Appellant:	Clayton Utz
Counsel for the Respondent:	Mr M Black with Mr BR Moses
Solicitor for the Respondent:	Angus Francis Lawyers

Table of Corrections
27 April 2020	In [21], “(1)”, “(2)” and “(3)” has been replaced with “(a)”, “(b)” and “(c)” respectively

ORDERS

		QUD 116 of 2018
BETWEEN:	MINISTER FOR HOME AFFAIRS Appellant
AND:	MEGUMI OGAWA Respondent

JUDGES:	COLLIER, REEVES, DAVIES, RANGIAH AND STEWARD JJ
DATE OF ORDER:	19 June 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1. I am very grateful that I have had the opportunity to read in draft the judgment of Reeves J, and the joint judgment of Davies, Rangiah and Steward JJ, in this matter.

2. I agree with the reasons of Reeves J, and support the orders his Honour proposes.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 19 June 2019

REASONS FOR JUDGMENT

REEVES J:

3. I have had the benefit of reading in draft form the reasons for judgment of the majority. Subject to the following observations, I agree with their Honours’ reasons and conclusions with respect to the unreasonableness issue raised by appeal ground 2. That is to say, I agree with their Honours that the primary judge erred in holding that the Minister’s decision concerning the petition Dr Ogawa submitted to the Governor-General seeking a pardon was legally unreasonable.

4. The observations I would wish to add on that issue are as follows. The prerogative to which Dr Ogawa’s petition was directed, namely the prerogative of mercy, is entirely within the remit of the Executive. It may therefore be exercised by it for legal, or non-legal reasons, including for political reasons (see Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37). That being so, it is difficult to see how the Minister could be expected to assess from its contents whether it would be likely to succeed in gaining the pardon it sought. This, all the more so, where the Minister was only one member of the Executive and he was not the Minister responsible for the Department of the Executive that usually handles petitions of this nature (the Attorney-General’s Department). It is true that the Minister said in his reasons that there was “no evidence that … such an appeal, or pardon, is likely”. However, I do not take that comment to reflect a view on the petition’s prospects. Rather I take it as a reference to the lack of any evidence that the Executive had, for example, given an indication that a decision on the petition was imminent. If such evidence had...