Minister loses the Appeal, Federal Court split 3:2

Brisbane 19 June: In a unique case of court litigation for Australian residency visa, there has been a 2:3 split in Federal court Queensland involving the applicant – Dr Megumi Ogawa who, according to the minister had failed the character test and thus was refused visa to stay in Australia.

Dr Ogawa arrived in Australia in 1999. In 2009, by a strange twist of circumstances, she was convicted in the District Court of Queensland of harassment and making threats to kill. The threats were made in sending emails in 2006 to various email addresses at the Federal Court of Australia and making telephone calls to Registries and Chambers of the Court also in 2006.  In those emails and phone calls, threats were made to kill two Registrars and an officer of the Court.

As a result, she was sentenced to concurrent terms of six months’ imprisonment on each count. And for threatening Court Officials, she was also convicted of contempt of court and sentenced to four months’ imprisonment.

On 12 April 2013, Dr Ogawa made a combined application for a Temporary Partner Visa and a Partner (Residence) (Class BS) Visa.

Although the two sentences add up to six plus four – to ten months’ imprisonment because of the two sentences of six months were to run concurrently, for the migration Act, the two six months’ terms were to be added up to her third term of four months. Thus her sentence exceeded the 12 months’ period of the character test provided.

Perhaps mindful of the difficulty she had, she moved a petition for Pardon to the Governor General, first in 2013 and then superseding that petition again in 2014.

This obviously was done to overcome the anticipated course of action by the department on her application.

Dr Ogawa then provided to the Department a copy of a petition sent to the incoming Governor-General in 2014 and an earlier petition sent to the previous Governor-General in 2013 seeking a pardon.

Post that, she also made a submission to the Minister on 8 April 2017, referring to her 2014 petition and said:

In any event, in light of s 501(10) of the Migration Act 1958, it is premature to decide that the Visa Applicant does not pass the character test prior to the final disposition of the petition submitted by the Visa Applicant.

On 10 October 2017, the Department provided a submission to the Minister asking him to consider Dr Ogawa’s application for a Temporary Partner Visa.  The submission was accompanied by a draft statement of reasons for decision and a number of documents, including the documents that had been provided by Dr Ogawa to the Department.

On 18 October 2017, the Minister made the following decision:

I have considered all relevant matters including an assessment of the character test as defined by s 501(6) of the Migration Act 1958 (the Act), and all information before me provided by or on behalf of Dr Megumi OGAWA in connection with the possible refusal of her application for a Partner (Temporary) (Class UK) visa. 

…

Dr Ogawa has not satisfied me that she passes the character test.  I have decided to exercise my discretion under s 501(1) of the Act to refuse Dr OGAWA’S visa.  I hereby refuse Dr OGAWA’s application for a Partner (Temporary) (Class UK) visa.  My reasons for this decision are set out in the attached Statement of Reasons.  

 

Section 501 of the Act provides, relevantly:

501      Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)       The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

…

Character test

(6)       For the purposes of this section, a person does not pass the character test if:

(a)        the person has a substantial criminal record (as defined by subsection (7)); or

…

Otherwise, the person passes the character test.

Substantial criminal record

(7)       For the purposes of the character test, a person has a substantial criminal record if:

…

(d)       the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

…

Concurrent sentences

(7A)     For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

…

Pardons etc.

(10)     For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)        the conviction concerned has been quashed or otherwise nullified; or

(b)        both:

(i)         the person has been pardoned in relation to the conviction concerned; and

(ii)        the effect of that pardon is that the person is taken never to have been convicted of the offence.

Section 501G of the Act provides, relevantly:

(1)       If a decision is made under subsection 501(1)…to:

(a)        refuse to grant a visa to a person; or

…

the Minister must give the person a written notice that:

(c)        sets out the decision; and

(d)        specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)        sets out the reasons (other than non-disclosable information) for the decision; and

…

(4)        A failure to comply with this section in relation to a decision does not affect the validity of the decision.

The minister found: “As a result of her convictions, she does not pass the character test as defined in ss 501(6), (7) and (7A) of the Act”.

Pardon – Petition made in 2014 – no result till Minister’s decision in 2018        

At the time of the Minister’s decision, no decision had been made upon the 2014 petition.

The Minister’s statement of reasons began by considering the character test under s 501(6) of the Act.  The Minister noted Dr Ogawa’s contention that she passed the character test, but rejected that submission, finding that she had a substantial criminal record and that she did not pass the character test.  The Minister also said:

While I acknowledge that a Petition for pardon was made to the Governor-General of Australia in 2014, at present there is no evidence that there is an appeal of Dr Ogawa’s convictions underway or that such an appeal, or pardon is likely. 

The matter of course went to the Federal Court single judge bench where the decision of the minister was reversed. Among other things, the judge held that the minister made a jurisdictional error by not waiting for the decision of Dr Ogawa’s pardon petition to the Governor General.

Then the Minister appealed to the Full Court of the Federal Court of Queensland. Five Judges of the same court heard the matter on 23 November 2018. Totally split in their opinion, on 19 June 2019, seven months later they delivered a 3:2 split judgement where majority (Davies, Rangiah, and Steward JJ) dismissed the Minister’s appeal and delivered a win for Dr Ogawa.
Collier and Reeves JJ delivered a dissenting judgment – proposing orders with costs completely opposite to those proposed by the majority.

The outcome of Dr Ogawa’s petition to the Governor General is not known. Thus whether seeking a pardon successfully can help the applicant pass the failed character test, still seems to be a mystery.

But it can certainly buy time for the applicant.

Should you fail character test, is then a pardon petition the Governor General, another NEW step in the process to be added by migration lawyers to allow more time for their clients to be in Australia? 

– DM

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