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Cases

MIGRATION – appeal against decision of Minister to refuse visa application made pursuant to s 501 Migration Act 1958 (Cth) (‘the Act’) – where decision had the effect of cancelling bridging visa held by the appellant and where appellant became liable to be detained and was detained – whether procedural fairness required that appellant be advised of the consequences of an adverse decision made pursuant to s 501 of the Act – whether document upon which Minister signified his decision constituted the reasons for that decision – where Minister took into account irrelevant and sensational material without inviting appellant to comment on it – denial of procedural fairness – appeal allowed.

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [200

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (25 March 2004)
Last Updated: 25 March 2004

FEDERAL COURT OF AUSTRALIA


Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65



MIGRATION – appeal against decision of Minister to refuse visa application made pursuant to s 501 Migration Act 1958 (Cth) (‘the Act’) – where decision had the effect of cancelling bridging visa held by the appellant and where appellant became liable to be detained and was detained – whether procedural fairness required that appellant be advised of the consequences of an adverse decision made pursuant to s 501 of the Act – whether document upon which Minister signified his decision constituted the reasons for that decision – where Minister took into account irrelevant and sensational material without inviting appellant to comment on it – denial of procedural fairness – appeal allowed.



Migration Act 1958 (Cth) ss 501, 501F(3), 501G


Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 cited
Minister for Immigration and Multicultural and Indigenous Affairs v W157/00A (2002) 125 FCR 433 cited
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 cited
Bunnag v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 293 cited






STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 473 OF 2003





CARR, SUNDBERG AND LANDER JJ
25 MARCH 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 473 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: STEPHEN OGHO AKPATA
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: CARR, SUNDBERG & LANDER JJ
DATE OF ORDER: 25 MARCH 2004
WHERE MADE: ADELAIDE


THE COURT ORDERS THAT:


1. The appeal be allowed.
2. The decision of the respondent made pursuant to s 501 of the Migration Act 1958 (Cth) be quashed.
3. The appellant’s application for a parent 103 visa be reconsidered by the Minister for Immigration and Multicultural and Indigenous Affairs in accordance with these reasons.











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


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S473 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: STEPHEN OGHO AKPATA
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: CARR, SUNDBERG & LANDER JJ
DATE: 25 MARCH 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

CARR J:

1 I agree with the orders proposed by Lander J and with his Honour’s reasons.


I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of Justice Carr.



Associate:

Dated: 25 March 2004







IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 473 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA



BETWEEN: STEPHEN OGHO AKPATA
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES CARR, SUNDBERG & LANDER JJ
DATE: 25 MARCH 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

SUNDBERG J:

2 I agree with the orders proposed by Lander J and with his Honour’s reasons.

I certify that the preceding one (1)
numbered paragraph is a true copy
of the Reasons for Judgment herein
of Justice Sundberg.


Associate:

Dated: 25 March 2004





IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 473 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: STEPHEN OGHO AKPATA
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: CARR, SUNDBERG & LANDER JJ
DATE: 25 MARCH 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

LANDER J:

INTRODUCTION

3 This is an appeal from orders made by a judge of this Court on 1 May 2003 dismissing the appellant’s application for constitutional writs and consequential relief in relation to the refusal by the respondent to grant the appellant a Parent 103 visa. The appellant was unrepresented both before the primary judge and this Court.

FACTUAL AND PROCEDURAL BACKGROUND

4 The procedural background is somewhat unusual. The proceedings originated in the High Court of Australia. The applicant sought writs of prohibition, certiorari and mandamus (and related relief). Gummow J heard the matter on 12 August 2002 and, on 2 September 2002 dismissed the application. On 19 September 2002 the appellant appealed against that judgment. On 4 February 2003 the High Court delivered judgment in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. On 4 April 2003 a Full Court of the High Court by consent made orders allowing the appeal against the whole of the judgment of Gummow J, setting aside his Honour’s judgment and orders and remitting for further proceedings, in the application to this Court. An order was made that the application proceed in this Court as if the steps already taken in the High Court had been taken in this Court.

5 The following description of the facts is taken largely from the reasons for judgment of the learned primary judge: Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389. The appellant, a Nigerian citizen, entered Australia on a student visa in 1994 with his wife and two children, one of whom is a New Zealand citizen (she having been born in that country). In December 1995 he applied, in the event unsuccessfully, for a protection visa. That application generated a number of applications to this Court and was, at the time of the decision under review, the subject of a pending special leave application by the appellant to the High Court. That leave was refused. In 1999 he was granted his most recent bridging visa. It is the cancellation of that visa in what his Honour aptly described as the rather distinctive circumstances noted below which has triggered this proceeding.

6 On 26 July 1999 the appellant applied for a Parent 103 Visa (‘the parent visa’).

7 The respondent Minister dealt with the parent visa application personally. On 11 June 2002 the respondent decided to refuse the application for the parent visa. Acting under s 501 of the Migration Act 1958 (Cth) (‘the Act’) he refused the application on ‘character grounds’, not being satisfied that the appellant passed the character test. A consequence of that decision was, by virtue of s 501F(3) of the Act, that the respondent was taken to have decided to cancel the appellant’s bridging visa. That consequence rendered the appellant an unlawful non-citizen who was liable to detention under s 189 of the Act. He was taken into immigration detention on 13 June 2002 where he now remains and where he is likely to be kept until he is removed or deported from Australia or is granted a visa: see s 196.

THE PROCEEDINGS AT FIRST INSTANCE

8 The appellant represented himself at first instance. He challenged the respondent’s decision on two bases.

9 The first was that the respondent had committed a jurisdictional error in making his decision to refuse the application for the parent visa by denying him natural justice. The denial of natural justice alleged was that the respondent failed to inform the appellant that if his application for the parent visa were refused, his bridging visa would be cancelled and he would become an unlawful citizen liable to detention. That detention affected his personal liberty and has had a significant impact on him and on his family both emotionally and financially. If he had been made aware of this possibility he would, so he alleged, have sought legal advice and would have made detailed submissions (the substance of which he outlined in an affidavit of 23 July 2002) relating both to his family earnings and to his own and his son’s psychological well being and to the impact on each of them of the appellant’s detention.

10 The second ground of challenge, again alleged to be a jurisdictional error, was that in the minute signed by the respondent recording his decision no reference was made to, and the respondent failed to have regard to, the consequences to the appellant and his family of the automatic cancellation of his bridging visa under s 501F(3), if the application for the parent visa was refused under s 501(1). This was said to amount to a failure to have regard to a relevant consideration.

11 His Honour held that, having regard to the place and purpose of ss 501(1) and 501F(3) in the scheme of the Act, natural justice did not require the respondent to give the warning referred to above. He reasoned that s 501(1) was concerned not with the "bare question" whether a particular visa should be cancelled or refused. Its purpose, in the usual case, is to allow the respondent to determine whether or not a non-citizen should be allowed to enter or to remain within Australia. The s 501 character test was, so his Honour reasoned, of general application to all visa applicants and holders. If a decision adverse to a particular visa applicant or holder was made under s 501(1), but that person already held and was able to retain another visa (other than a visa saved for example by s 501F(3)(b)), the effect of that decision would be nullified to the extent that the person would remain a lawful non-citizen [see s 13(1) of the Act] not liable to be removed from Australia under s 198 of the Act. His Honour expressed he view that the function of s 501F(3) is to preclude such an outcome. Thus it operated in aid of s 501 in the scheme of the Act in effectuating the purpose of the section.

12 His Honour concluded his reasoning on this point in the following terms at [25]:

‘For this reason while the decision of the Minister under s 501(1) of the Act attracted a natural justice requirement in relation to his doing what was mandated by that subsection (ie determining whether to refuse to grant a visa to a person who does not satisfy the Minister that he or she passes the character test), the obligation did not extend to explaining how, in the scheme of the Act, an adverse decision would be carried into effect. The focus of the natural justice obligation was the "character test" determination itself. If that is decided adversely to a visa applicant the consequences are, in the usual case (but cf s 501F(2)(b) and (3)(b)), pre-ordained by the Act. No matter how harshly those consequences might fall on an unsuccessful applicant, they are not of themselves capable of generating a natural justice obligation to warn of them as part of the processes leading to a s 501(1) decision.

I have emphasised "of themselves" above for this reason. As is made plain in Direction 21, the discretion to be exercised under s 501 can properly encompass consideration of effects that would flow from the unsuccessful visa applicant’s removal from Australia. I need only refer without elaboration to those matters outlined in the Direction under the headings "The best interests of the child" and "Other Considerations".’

13 The appellant raised a late contention before his Honour to the effect that he had not been provided with the Departmental minute placed before respondent of "Issues for consideration&qu;
ot; relating to the appellant and on which the respondent signified his decision. His Honour noted that the minute was based on factual material known to the appellant and/or supplied by him and which was related to the decision-making scheme of Direction No 21 to which the appellant had in turn been directed when the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) invited submissions from him. The appellant submitted that the failure to provide him with the minute and the advice and options it contained was a breach of natural justice in itself. His Honour rejected that contention. His Honour’s reasoning was expressed as follows at [28]:

‘It is not open to question in light both of the content of the letter and its annexures (including Direction No 21) sent to Mr Akpata in February 2002 and of his extensive response thereto, that he was given an opportunity to, and he did, deal with relevant matters adverse to his interests contained in the minute and which the Minister might possibly have taken into account in exercising his discretion: cf Kioa v West (1985) 159 CLR 550 at 628-629; see also Aronson and Dyer, Judicial Review of Administrative Action, 413ff (2nd ed). Significantly Mr Akpata has not pointed to any adverse material in the minute which was not disclosed to him. Mr Akpata was well aware of the case against him and he was given a fair and reasonable opportunity to meet it aided as he was by the guidance given in Direction No 21.’

14 His Honour dealt with the second ground of the application (failure to have regard to the consequences to the appellant and his family of the automatic cancellation of his bridging visa) at [30] as follows:

‘This ground of challenge is simply misconceived. The terms of the character test apart, the Act does not expressly state the considerations which the Minister is bound to take into account in making his decision under s 501(1): Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41. In my view, the subject matter, scope and purpose of the Act do not lead to or necessitate any implication that the Minister was bound to take account of the impact on a visa applicant of those machinery provisions of the Act (such as s 501F) that were designed to effectuate the actual purpose of an adverse decision taken under s 501(1) (ie the removal of that person from Australia). In any event, one can reasonably infer that the Minister was aware of those machinery provisions and, given Mr Akpata’s special leave application at the time of the Minister’s decision, that he was a visa holder of another visa.’
THE STATUTORY CONTEXT

15 The effect of ss 13 and 14 of the Act is that a non-citizen in the migration zone who does not hold a visa that is in effect, is an "unlawful non-citizen".

16 Section 189(1) prescribes that:

‘If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.’

17 Section 196 in turn prescribes (in part) that:

‘(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
...

(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.’
18 Insofar as is presently relevant, s 501 provides:

‘501 Refusal or Cancellation of visa on character grounds

(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.
...

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)); ...


Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more.’


19 Section 501F provides insofar as presently relevant that:

‘(1) This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
...

(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.’

20 Finally, s 501(G) relevantly provides:

‘(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;

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
...’
THE APPEAL

21 The appellant was not legally represented in the appeal. Two grounds of appeal were included in the Notice of Appeal:

‘That the judgement of the learned Judge contained an error of law on the face of the record.

That the learned judge erred in concluding natural justice does not flow by reason of the operation of s 501F(3) of the Act.’

22 The grounds of appeal in the Notice of Appeal are unhelpful. That is not a criticism of the appellant, who at all times has been unrepresented, but a statement of fact.

23 The appellant did not provide the Court with an outline in writing of his submissions or contentions. In his oral presentation he not only argued that the primary judge erred in deciding both matters adversely to the appellant but he argued there were other reasons for allowing the appeal.

24 He claimed that the respondent erred in a number of respects in deciding the appellant’s application for the parent visa. These errors were in addition to the errors said to have been made by the primary judge on the appellant’s application for judicial review. In the absence of proper grounds of appeal or written submissions, this Court must treat his oral submissions as particulars of the grounds of appeal.

25 In doing so, it must be said that the oral presentation was somewhat discursive and it is not easy to understand the precise matters complained of even after reading and re-reading the transcript of the appeal. I will address the matters in a different order to the order adopted by the appellant because it is more convenient so to do.

The Appellant’s Complaints on the Appeal

26 The appellant contended that he was denied procedural fairness by the Minister in that a minute, apparently used by the Minister in reaching his decision, contained incorrect information, which the appellant could have corrected had he been provided with a copy of the minute before the decision was made. This matter had been raised before the primary judge who dealt with it adversely to the appellant on the basis he had failed to point ‘to any adverse material in the minute which was not disclosed to him.’

27 The appellant contended that documents provided by him to the Minister in response to the Department’s letter of February 2002 were not considered by the Minister when making his decision to refuse the grant of the parent visa. The appellant complained that the Minister, in reaching his decision, failed to take into account evidence that he had been subjected to torture in his country of origin, Nigeria, and failed to take into account the best interests of his children. It is not apparent from the appeal papers that this ground for review was ever raised before the primary judge. The appellant indicated that this was a matter he had tried to raise before the primary judge, but in respect of which the judge would not hear him. It was on this basis that Mr Akpata urged the Court to have before it the transcript of the proceedings before the Judge. The transcript was not included in the appeal book, nor was it in the possession of the parties at the hearing of the appeal.

28 It is not necessary to enquire into the primary judge’s conduct of the hearing of the application for review. It would be better to simply deal with the appellant’s complaint that the documents were not considered by the Minister.

29 The appellant renewed the complaint made to the primary judge that the Minister was aware, when making his decision to refuse the parent visa, that refusal of the application would result in any visa held by the appellant being cancelled, and that this would result in him being liable to detention, and, necessarily, separation from his family. He said that if he had been made aware of this possible outcome, he simply would have left the country with his family and thereby avoided detention.

30 Finally, the appellant said that the respondent Minister took into account irrelevant and sensational material in reaching his decision.

The Procedure adopted by the Minister

31 On 26 February 2002 the Assistant Director (Character and Entry Security Section) wrote to the appellant in response to the appellant’s application for the parent visa. He wrote:

‘It has come to the attention of the Department that this visa may be liable for refusal under subparagraph 501(6)(a) of the Act:

• For the purpose 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).

Subsection 501(7) states that for the purposes of the character test, a person has a substantial criminal record if "the person has been sentenced to a term of imprisonment of 12 months or more".

Before the Minister or his delegate considers whether to refuse your visa application under subsection 501(1), you are provided with an opportunity to comment. Matters to be taken into account include the following:

• The criminal convictions which you have incurred (as per attachment)

In reaching a decision whether to refuse your visa application under section 501, the Minister or his delegate will have regard to the matters noted above and the attached Minister’s direction 21 titled "Direction under section 499 – Visa refusal and cancellation under section 501 Migration Act 1958".

In preparing your response, please read fully and carefully the contents of the Minister’s Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister or his delegate ought to be aware of and take into account.’

32 Two documents were enclosed with that letter, a copy of s 501 and the Minister’s direction 21 ‘Direction under section 499 – Visa refusal and cancellation under section 501 Migration Act 1958’ (Direction No 21). Direction No 21 was made under s 499(2) of the Act. It does not bind the Minister but in this case the Minister followed his own direction. Direction No 21 is a lengthy document of some 15 pages. It is divided into two parts. Part 1 is directed to the application of the character test and Part 2 to the exercise of the discretion if the non-citizen does not pass the character test.

33 Part 2 is too long to be set out in its entirety but there needs to be some understanding of its terms.

34 First it tells the reader that there are three primary considerations in deciding to refuse or cancel a visa under s 501.

‘(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.’

35 In relation to (a) the document states:

‘Protection of the Australian Community

2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.

2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).’
36 The expectations of the Australian Community were stated to be:

‘Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect.’
37 As to (c) I shall set out the contents of the document:

‘The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.

2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.
2.15 In general terms, the child’s best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen, include, but are not limited to:
(a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct

2.16 When considering the best interests of the child, decision-makers should have regard to the following:

(a) the nature of the relationship between the child and the non-citizen;

(b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c) the age of the child;

(d) whether the child is an Australian citizen or permanent resident;

(e) the likely effect that any separation from the non-citizen would have on the child;

(f) the impact of the non-citizen’s prior conduct on the child;

(g) the time (if any) that the child has spent in Australia;

(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.’

38 Reference was made to other considerations:

‘OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:

(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

"Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

‘The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.’


Article 17.1 provides that:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation."


(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;


(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d) family composition of the non-citizen’s family, both in Australia and overseas;

(e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

(f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

(g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

(h) any evidence of rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent visa;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.’

39 Lastly the document dealt with other international obligations:

‘OTHER INTERNATIONAL OBLIGATIONS (18)

2.18 Where relevant, decision-makers are required to consider the international obligations contained in this section.

2.19 The International Convention on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of his or her rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) of the ICCPR, or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol to the ICCPR).

2.20 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has an explicit prohibition against refoulement "where there are substantial grounds for believing (the person) would be in danger of being subject to torture".

2.21 The prohibition of refoulement under the CAT and ICCPR is absolute: there is no balancing of other factors if refusal or cancellation would amount to refoulement under the CAT or ICCPR.

2.22 In cases where issues of protection pursuant to the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration in the decision making process.

2.23 If Article 33(1) of the Refugees Convention does not apply to the non-citizen, there is no obligation on Australia to provide the non-citizen with protection under the Refugees Convention. If Article 33(1) applies, then there will need to be consideration whether the non-citizen can claim the benefit of Article 33(1).

2.24 Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.’

40 The appellant responded in writing in an undated letter, ‘Application for Permanent Residency in Australia File No F99/158692’, to the letter of 26 February 2002 and Direction No 21. His response like Direction No 21 was in two parts. In the first part he addressed at length his criminal convictions. He set out ‘The mitigating circumstances and factors’ to which the Minister should have regard. He addressed his prospects of rehabilitation. He informed the Minister of an alleged sexual assault on his wife by a third party.

41 The second part of his response is headed:

‘DIRECTION No 21 OF SECTION 501
PART TWO

I will now address the points and issues which apply to me and which are relevant to my circumstances.’
42 He then dealt with ‘Primary Considerations’:

‘PRIMARY CONSIDERATIONS

2.3(c) THE BEST INTEREST OF THE CHILD

2.13 I will therefore, plead with you and the Department to consider my application in the best interest of my children who are under 18 years of age. They are TREASURE JEMIMAH AKPATA my daughter who is a New Zealand citizen and our sponsor in this application. She is now 8 1/2 years old.

PRECIOUS AKPATA our son who is only 12 years old.

The Akpata Family which comprises of myself, Stephen Akpata, my wife Mrs Fortress Akpata main applicant, Precious Akpata and Treasure Akpata. This is the only family we now have. Father, Mother and children.

As it is with nature and the firm believe of The Australian Government that the child’s best interest will be served if the child remains with it’s parents.

Treasure and Precious Akpata best interest will be served if they remain with us the parents. By this I mean Stephen and Fortress Akpata and in particular as a family unit. The children need the family particularly their parents to provide for them, Precious and Treasure Akpata with physical, emotional and psychological supports, which only parent, are able to provide them with.

Precious and Treasure Akpata have lived with their parents here in Australia all of their lives.

Their social reality is in Australia as they have their schools and their friends here.

The whole family has adapted well in Australia and we are well accepted by the local community.

The Akpata family call Australia HOME.

We see our family as an Australian family and citizens.

We have now lived in Australia for nine years. See Doc No DFCS 2, MCSA 4, SCSA 5, ASC 7, ASC and RJB 9, ML 10, and ML 11, Please refer to letters, Catholic Multicultural Pastoral Service, Aileen Dawson.

...

2.16

(a) I and my wife and our children Precious and Treasure Akpata have a very strong and solid relationship. A relationship based and built on the foundation of Our Lord Jesus Christ.

One where love, care, encouragement, and a very warm and cordial family which has been the envy of many other families, who look and copy the values of the Akpata family. Our family has and is a light to the many other families whom we minister to. We are a very STABLE FAMILY.

(b) Treasure and Precious have lived with my wife and me for all their lives. Precious for 12 years and Treasure for 8 1/2 years.

There has only been 8 months separation period when I was in Prison. 2 months in 1996 and 6 months in 2001.

But though I was in Prison and not at home, we the family met together for 2 hours every Saturday and Sunday during visitation.

We also had regular phone discussion about at least 2 to 3 times a day and these phone calls were about 10 to 20 minutes duration each.

This further highlights that the family and indeed the children, Precious and Treasure cannot be separated from me their father.

(c) The children as already stated are 12 years old Precious and 8 1/2 years Treasure.

(d) Treasure is a New Zealand citizen permanently living in Australia.

(e) As already mentioned and cited in all the Reports, separation from my children would have profound and devastating effect on my children should I be separated from them permanently.

(f) I have had a positive influence on my children as a result of my prior good conduct of my ministries, religious believes. My volunteer work, involves ministering to the homeless, my ministries with and to the Aboriginal people in our community as well as the African and General Community.

(g) Both children have spent 9 years and 8 1/2 years respectively now in Australia.

(h) There is nothing to look forward to as far as this clause is concerned. It is doom. No comparison at all. Nigeria is totally corrupt.

(i) There is a great language barrier for both children as they have only spoken and communicated in the Queens English.

(j) There is a gulf between the cultures here in Australia and what is obtained in Nigeria.’

43 He then directed his attention to ‘Other Considerations 21’. I set out the relevant matters addressed:

‘OTHER CONSIDERATIONS 21

2.17

(a) As stated in the "Article 23.1 of the International covenant on civil and political Rights" (ICCPR) provides that:
"The family is the natural and fundamental group unit of society, and is entitled to Protection by society and the State"

Please refer back to Doc Nos FMC.1, DFCSC.2, MCSA.3, MCSA.4, ASC.7, ASC.8, RJB.9, ML.10, ML.11, CBA.15, and DIMA 16. Respectively and letters from Catholic Multicultural Pastoral Service and letter from Aileen Dawson.

Article 17.1 provides that:

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation’.

(c) There will be a very serious and detrimental high degree of hardship to my family should I be separated from my wife, children permanently. See documents already refereed to above.
The Akpata family is a stable loving family.

I, Stephen Akpata am the father and Husband to my wife Fortress Akpata and Father to Precious and Treasure Akpata.

My family is solely dependent on me for support and provision together with protection of my family, as highlighted in the Reports and Judgement of Her honour Sue O’Coanor [sic]. See Doc No MCSA.4 and DFCS.2 and RJB.9.’

44 Next he dealt with ‘Other International Obligations’ in which he pointed out that his application for a protection visa was before the High Court of Australia. He referred to the International Convention on Civil and Political Rights. Next he addressed the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment done at New York, 10 December 1984 and said:

‘2.20

"The convention Against Torture and other cruel, inhuman or Degrading Treatment or punishment or punishment (CAT) has an explicit prohibition against refoulement, where there are substantial grounds for believing (the person) would be in danger of being subject to torture". Please see document No ML 10 and ML 11.’

45 At the hearing of the appeal he identified those two documents which were handed up. I shall return to those.

46 On 31 May 2002 the Minister was provided with a minute from the Character Entry and Security Unit of the Department seeking his decision on the possible refusal to grant a visa under s 501 of the Act (the minute).

47 On 11 June 2002 the Minister gave his decision which was signified on a document provided to him entitled ‘Issues for Consideration for Possible Visa Refusal Under Subsection 501(1) of the Migration Act 1958’:

‘PART E: DECISION

I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Akpata’s comments, and have decided that:

Please delete whichever is NOT applicable:

(a) I am satisfied that Mr Akpata passes the character test:
OR
(b) I reasonably suspect that Mr Akpata does not pass the character test and Mr Akpata has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(1) of the Act to refuse the visa;
OR
(c) I reasonably suspect Mr Akpata does not pass the character test and Mr Akpata has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(1) of the Act to refuse the visa BUT Mr Akpata is to be WARNED that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences;

OR

(d) I reasonably suspect that Mr Akpata does not pass the character test and Mr Akpata has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) OF THE ACT TO REFUSE THE VISA, so I hereby refuse the visa.’
48 On 13 June 2002 that decision was communicated to the appellant in a Notice which was hand delivered that day:

‘NOTICE OF VISA REFUSAL UNDER SECTION 501(1) OF THE MIGRATION ACT 1958

On 26 February 2002, you were informed in writing that that the Minister for Immigration and Multicultural and Indigenous Affairs intended to examine whether there were grounds to refuse your application for a visa under section 501 of the Migration Act 1958 (the Act). You responded by letter.

All your comments were carefully considered and taken into account. The Minister for Immigration, Multicultural and Indigenous Affairs has, after exercising his discretion, decided to refuse the grant of visa to you pursuant to s 501(1) of the Act. The particular ground under which you do not pass the Character Test is s 501(6)(a) of the Act.

Since your application for a parent 103 visa has been refused:

• You are not allowed to make an application for another visa, unless;
- this refusal decision is set aside or revoked; or
- the application is for a protection visa and such application is not precluded by Section 48A of the Act; or
- the application is permitted by the regulations made pursuant to Section 501E(2).


• If you have made another visa application prior to the date of this Notice that has neither been granted nor refused, and that visa is not a protection visa or one specified in the regulations for the purpose of Section 501F(2) of the Act, then that application is taken to be refused.
• Any other visa that you may hold, other than a protection visa or one specified in the regulations for the purpose of Section 501F(3) of the Act, is now taken to be cancelled unless this refusal decision is itself set aside or revoked.

Because the decision was made personally by the Minister you do not have a right to have the decision reviewed by the Administrative Appeals Tribunal. However, you may wish to seek further legal advice as to other avenues of judicial review, which may be available to you.

Enclosed with this Notice is a copy of the decision record, which sets out the reasons for the decision.

Please acknowledge receipt of this Notice by signing the statement at the foot of the duplicate copy of this letter.’

49 Accompanying that notice was a document described as the decision record. That was the document the Minister signed on 11 June 2002 in which he refused the appellant’s application for the parent visa. The document is too long to set out but reference will need to made to it to consider the appellant’s complaints.

50 The Notice of Visa Refusal and the decision record was intended by the Minister to be the Minister’s compliance with s 501G of the Act. Because the Minister decided to refuse to grant the appellant the parent visa the Minister needed to give the appellant a written notice which complied with paragraphs (c), (d) and (e) of subsection 501G(1).

51 The Notice of Visa Refusal or the decision record or both may have been sufficient compliance with s 501G(1)(c): Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 per Gleeson CJ, Gummow and Heydon JJ at [39] per Kirby J at [103] (‘Palme’). But the decision record did not contain his reasons even though it was under the heading ‘Decision’. The certificate was in the form referred to in [45].

52 Neither the Notice of Visa Refusal or the decision record contained the Minister’s reasons: s 501G(1)(e). The decision record was in fact no more than the Minister’s brief: Palme; Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433; Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 at [56] – [57].

53 The procedure adopted by the Minister including the provision of his decision in the decision record was held to be ‘a failure to express the essential ground or grounds for his conclusion that the prosecutor had not satisfied him that he passed the character test and that the prosecutor’s visa should be cancelled’: Palme per Gleeson CJ, Gummow and Heydon JJ at [40] and McHugh J at [54]. However that failure does not amount to jurisdictional error: Palme at [45], [56], [57].

54 So whilst in this case and in Palme the Minister did not comply with his statutory obligations, for the reasons given by the majority and McHugh J in Palme, that failure did not give rise to jurisdictional error and was not such as to provide the appellant in Palme, or the appellant in this case with any substantive relief.

55 The appellant has wrongly assumed that the decision record is the Minister’s reasons. He made the same assumption before the primary judge. The primary judge noted:

‘... I should first note, though, that no challenge has been made to the adequacy of the Minister’s reasons for decision as such: cf Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332.’

56 The two matters which were raised for consideration by the primary judge did not depend or touch upon the adequacy or otherwise of the Minister’s reasons. Because there was no complaint of any failure by the Minister to give reasons the primary judge had no need to address that matter. The appellant did not assert before the primary judge that the decision record did not contain the Minister’s reasons. On his argument he did not need to. If he had he would not have been entitled to any substantive relief because the failure did not amount to jurisdictional error.

57 Nor did the appellant seek an order from the primary judge for mandamus compelling the Minister to give reasons.

58 The appellant did not contend on this appeal that he was entitled to any relief, including mandamus, compelling the Minister to publish reasons. He has assumed, wrongly, that the decision record contains the Minister’s reasons. This Court was not directed by either party to the decision of the High Court in Palme. That is not a criticism of either party. The respondent proceeded upon the assumption that the challenge to the primary judge’s decision was in respect of the two matters raised before that judge.

59 However, the appellant’s complaints must be considered in circumstances where no reasons for decision have been given by the Minister.

Documents handed up on the appeal

60 At the hearing of this appeal the appellant handed up a number of documents some of which he said he had placed before the Minister in his undated response [40] – [43].

61 The documents, which Mr Akpata handed up in Court, and which Mr Akpata said he provided to the Minister, but which he said were not taken into consideration by the Minister were:

• Two medical reports of Dr Andrew S Czechowicz dated 4 August 2000 and 18 August 2000.
These reports were addressed to by Mr S Blewett of Lieschke & Weatherill who, presumably, was Mr Akpata’s solicitor at the time.
• Two medical reports of Dr Michael Lee dated 9 March 1999 and 21 January 2000.
These reports were addressed to the Refugee Review Tribunal.
• Letter dated 12 December 1995 from the Australian Consulate-General Aukland, Immigration Section, advising that the applications for migrant visas made by the Akpata family had been unsuccessful.
• Letter dated 11 March 2002 from Maria Barredo of the Catholic Multicultural Pastoral Service to the Department in support of the application made by the ‘Akpata family for permanent residency in Australia through the Family Migration Program’.
• Letter dated 18 March 2002 from Ms Aileen Dawson to the Character and Entry Security Section of the Department in support of the appellant’s response to the Minister’s letter advising of possible visa cancellation on character grounds.
62 In addition to those documents, further documents were referred to by the appellant and handed up. The appellant did not suggest, I think, that these documents were provided to the Minister and not properly considered by him:

• A 010 Bridging Visa A (bridging visa A) issued to the appellant on 22 December 1995;
• A letter from the appellant to Client Services, DIMA dated 4 January 2000 (and received 27 January 2000), requesting confirmation from the Department that he was the current holder of a Bridging Visa A.
• The appellant’s passport containing a 020 Bridging Visa B issued to him on 5 July 1999 (a bridging visa B).
• Letter dated 16 December 2002 from DIMA to the appellant confirming that he is the current holder of a ‘Bridging A Visa’.
63 In addition to those documents, the appellant marked in the court book, two further documents to which he wanted the Court to have regard. He did not say why. They were:

• A letter from the Refugee Review Tribunal dated 18 January 2000 advising of the applications for review made by the appellant, his wife and son, which were then before the Tribunal.
• A letter from the Immigration Section of the Australian High Commission in Fiji to the appellant’s wife dated 30 July 1999, advising that her ‘application’ had been transferred to the High Commission’s office in Nairobi, Nigeria.
Errors in Material Before the Minister

64 The appellant relied upon errors in the minute dated 31 May 2002 (‘the minute’) which was before the respondent Minister when he made his decision to refuse the parent visa application on character grounds. He claimed that the errors could have been corrected by the appellant had he been given the opportunity.

65 The minute was prepared by the Department for the purpose of obtaining the Minister’s decision ‘on the possible refusal to grant a visa under s 501 of the Migration Act 1958 (‘the Act’) to Stephen Ogho Akpata’.

66 In due course the Department wrote to the appellant advising of the Minister’s decision. It enclosed a copy of the issues document which it called the decision record ‘which sets out the reasons for the decision’. The appellant also complained of errors in the decision record.

67 It may be assumed that the Minister had regard to the minute.

68 The minute stated that:

‘On 1 September 1998 Mr Akpata lodged an application for a Parent 103 Visa at our post in Aukland sponsored by his daughter Treasure who is a New Zealand citizen. This application was unsuccessful.’

69 The minute also stated:

‘On 11 August 1999 Mr Akpata lodged another application for a Parent 103 Visa at the post in Nairobi sponsored by his daughter. This is the application under consideration for refusal.’

70 The appellant said that the minute was wrong. He said that he had only ever applied for one parent visa, and that application was lodged on 27 July 1999 in Fiji. The appellant said the inclusion of incorrect information such as this in material before the Minister prejudiced him in the Minister’s consideration of the matters under s 501. He said that, if he was under an obligation to provide correct information to the Minister in support of any application, then the Minister should also be required to inform himself only with correct and relevant information.

71 In the decision record, it was recorded that the appellant had been refused a parent visa on 6 November 1998.

72 The decision record also states that the last visa held by the applicant was a bridging visa B which was granted on 30 July 1999.

73 The appellant handed a copy of this visa to the Court at the hearing of the appeal, to establish that it was granted on 5 July 1999, rather than the date claimed in the decision record.

74 The appellant said that he held a bridging visa A at the same time as his bridging visa B. A copy of the bridging visa A was also handed to the Court. It showed that the appellant was granted a bridging visa A on 22 December 1995.

75 In a letter from the Department to the appellant dated 16 December 2002, which the appellant handed up at the hearing on the appeal, the Department advised that the appellant’s bridging visa A did not permit him to re-enter Australia if he were to leave the country.

76 The bridging visa B was granted to enable the appellant to travel out of Australia. The appellant left Australia on that visa on 27 July 1999 and returned on 30 July 1999. The appellant claimed that on his return to Australia the bridging visa B was spent and thereafter he remained in Australia pursuant to the grant of bridging visa A. It is clear from the letter to which I have referred that at least as at 16 December 2002, the appellant held a bridging visa A.

77 Counsel for the respondent at the hearing of the appeal, Ms Maharaj, had not been given notice of these matters and was unable to assist the Court in relation to the appellant’s claims. However, she argued that even if the appellant’s complaints of error were correct, the mistakes were not material. That submission must be accepted.

78 The appellant’s application for the parent visa was refused by the Minister pursuant to s 501(1) of the Act on the ground that the appellant failed the "character test". The appellant did not pass the character test because he had a substantial criminal record: ss 501(6)(a) and 507(7)(c).

79 The appellant was convicted of four counts of false pretences in the Adelaide Magistrates Court on 30 July 1996. He had pleaded guilty to the offences and was sentenced to 12 months imprisonment with a non-parole period of 5 months. The appellant served only part of his non-parole period in prison and the remainder in home detention.

80 On 3 August 2001, following a trial, the appellant was convicted of 25 counts of dishonesty offences and was sentenced 12 months imprisonment with a non parole period of 6 months.

81 Section 501(7)(a) provides that for the purposes of the ‘character test’, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Clearly, the appellant had a substantial criminal record for the purposes of s 501 of the Act.

82 Section 501 is in a sense a discrete provision. It allows the Minister to refuse to grant a visa to a person, who would otherwise be entitled to a visa, if that person does not pass the character test. The power to refuse the visa once the Minister has concluded that the applicant has not satisfied the Minister that the applicant passes the character test is discretionary: s 501(1). That follows from the use of the permissive word ‘may’.

83 Whether the appellant had previously applied for (and been refused) a parent visa, or whether the appellant’s last visa was a bridging visa A or a bridging visa B, were irrelevant matters in the Minister’s consideration of whether the appellant passed the character test, and to the Minister’s discretion as to whether to refuse the application on that ground.

84 The evidence which was properly before the Minister established that the appellant had a substantial criminal record: s 501(6)(a); s 501(7). That having been established, the appellant did not pass the character test: s 501(6). Because he could not satisfy the Minister that he passed the character test the Minister could, in the exercise of his discretion, refuse to grant the appellant a visa, and in this particular case a Parent 103 Visa.

85 The only matters to which the Minister can have regard for the purpose of determining whether an applicant passes the character test are the matters in s 501 itself. Whether or not the applicant has previously been refused a parent visa or held a B Class or A Class bridging visa were not matters to which the Minister could have regard in determining whether the appellant passed the character test. They were irrelevant.

86 Those two matters were also not relevant in considering the manner in which the Minister should exercise his discretion under s 501.

87 The errors in the minute and in the decision record were immaterial.

Evidence of Torture

88 The appellant argued that the Minister failed to take into account evidence of the appellant having been tortured in Nigeria.

89 As already explained the appellant’s argument assumed, wrongly, in the light of the High Court decision, that the decision record contained the Minister’s reasons. The decision record merely was the Minister’s brief upon which he recorded his decision. The Minister has not given reasons but his failure to give reasons does not mean that there has been jurisdictional error.

90 The appellant has never been the holder of a protection visa.

91 The history of the appellant’s attempts to obtain a protection visa is outlined in an affidavit of Ms Reed sworn 18 July 2002, which was included in the material placed before this Court.

92 On 22 December 1995 the appellant applied for a protection visa. It was then that he was granted an bridging visa A. The application for a protection visa was refused by a delegate of the Minister on 7 November 1996. The appellant applied to the Refugee Review Tribunal (RRT) for a review of that decision in November 1996. In December 1997 the RRT affirmed the delegate’s decision. An application for judicial review was made to this Court and on 20 November 1998, a judge of this Court allowed the application for review, and remitted the appellant’s matter to a differently constituted RRT.

93 On 18 May 1999 a second RRT affirmed the Minister’s delegate’s decision. On 22 November 1999 the appellant sought judicial review of that decision in the Federal Court. The matter was remitted to the RRT by consent. A third RRT again affirmed the decision of the Minister’s delegate on 19 May 2000.

94 On 3 July 2000 a further application for judicial review was made which was refused. The appellant appealed to the Full Court of the Federal Court but was unsuccessful. On 3 January 2002 the appellant applied for special leave to appeal to the High Court of Australia from the decision of the Full Court. That application had not been heard as at the date of Minister’s decision. The application for leave to appeal to the High Court was subsequently dismissed on 11 April 2003, shortly before the hearing of the application for judicial review before the primary judge.

95 The various decisions this Court and those of the variously constituted RRTs were not placed before the Court on this appeal. At the hearing of the appeal the appellant claimed, rather as an aside, that the second RRT decision was set aside because of ‘the negligence of the Refugee Review Tribunal for failing to take into account that [he] had been maltreated and subject to torture in Nigeria’. The Court can neither accept nor reject that submission because the decision was not before the Court. But none of the decisions are relevant. The fact is the appellant sought a protection visa which was refused and ultimately the Minister’s delegate’s decision was affirmed. Nothing in those decisions or the decisions of this Court could have impacted upon whether the appellant passed the character test. Nor could these decisions have impacted upon the exercise by the Minister of his discretion to grant or refuse the visa.

96 The appellant claimed that he had put before the Minister (for consideration in relation to the possible refusal of the Parent visa application pursuant to s 501) a medical report of Dr Michael Lee dated 21 January 2000 which evidenced that he had suffered torture in Nigeria. The appellant said that material was not considered by the Minister in reaching his decision pursuant to s 501 of the Act. That report was also handed up at the hearing of the appeal.

97 Whilst evidence that the appellant had been tortured in Nigeria would have been relevant to the appellant’s application for a protection visa, it was not relevant to the decision made by the Minister as to whether the appellant passed the character test pursuant to s 501.

98 The real question is whether that evidence was relevant to the exercise of the Minister’s discretion.

99 The Minister’s discretion appears to be unfettered. There is nothing in the Act which compels the Minister to have regard or not have regard to any facts or circumstances. Even though the exercise of the power of the Minister is in respect of an application for a particular visa, and only the applicant’s history is relevant to the question of the applicant passing the character test, that does not mean that the Minister could not and should not consider other matters personal to the applicant in exercising the Minister’s discretion.

100 It would not be appropriate to attempt to exhaustively indicate what matters might be relevant for the Minister to consider before exercising the statutory discretion.

101 There are a number of different ways whereby an applicant might not pass the character test: s 501(6). The character test is not limited to a determination that a person has a substantial criminal record.

102 In determining what is relevant for the purpose of the exercise of the Minister’s discretion the Minister will have regard to the purpose of s 501 and the sections that follow and which are related to that section.

103 Section 501 is designed to provide a procedure whereby persons who have been granted visas or persons who would otherwise be entitled to the grant of a visa may have that visa cancelled or refused if those persons are undesirable persons to travel to or remain in Australia. Persons will be undesirable if they fail to pass the character test.

104 In Direction No 21 the Minister says:

‘The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.

...

2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.’

105 The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

106 Where the applicant has failed to pass the character test because the applicant has a substantial criminal record (as in this case), the seriousness of the offences; the circumstances of the offences for which convictions have been recorded; any mitigating facts or circumstances relating to the convictions; the degree of remorse or contrition of the applicant; the sentencing remarks of the sentencing court; the applicant’s history before and after the convictions; the applicant’s personal circumstances; the effect of an order under s 501 on the applicant’s dependents and his family; the prospects of the applicant’s rehabilitation; and the chances of the applicant committing further offences would usually be relevant factors to which the Minister would have regard.

107 In short, any matter that would move the Minister to allow a person of proven bad character (as it defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister.

108 The extent of the power and the consequences of its adverse exercise need to be mentioned. There is nothing in s 501 which would preclude the Minister from exercising the power in s 501(1) where the applicant is seeking a protection visa.

109 If an applicant does not pass the character test and if the Minister exercises his or her discretion adversely to the applicant the consequence is that a person who would otherwise be eligible for the grant of a visa is refused: s 501(1).

110 The Minister may exercise the power under s 501 to cancel an existing visa even where no application is before the Minister, if the Minister reasonably suspects that the person does not pass the character test and the person in fact does not satisfy the Minister that the person passes the character test: s 501(2).

111 A decision under s 501 to refuse to grant a person a visa has other effect by force of the Act. It prevents the person applying for a visa, except a protection visa or a visa specified in the regulations, whilst in the migration zone: s 501E. It has the effect of refusing any other application for any other visa, except a protection visa or a visa specified in the regulations: s 501F(2).

112 Moreover a decision under s 501 to refuse to grant a person a visa cancels any other visa, except a protection visa or a visa specified in the regulations: s 501F(3).

113 There are no visas specified in the regulations under those sections.

114 There is a matter about the effect of the exercise of the power in s 501 which should be noted. The power given under s 501(1) can be exercised, apparently, where the applicant is seeking a protection visa. There is nothing in the subsection or the other subsections of s 501 to suggest otherwise. However, if a person who is the holder of a protection visa is applying for a visa other than a protection visa the person’s application may be refused but the protection visa will not thereby be automatically cancelled: s 501F(3).

115 There is nothing in s 501(2) or the other subsections in s 501 that would prevent the Minister exercising the power in that subsection in respect of a person who has been granted a protection visa. In the end result the Minister can exercise the powers in s 501 in respect of a person applying for a protection visa or the holder of a protection visa to refuse the application or cancel the visa. However, that person may still, subject to s 48A, apply for a protection visa: s 501E.

116 A person who holds a protection visa does not have that visa cancelled unless the Minister exercises the power under s 501(2). Such a person will not have the protection visa cancelled if the Minister exercises the power under s 501(1). Whilst the holders of protection visas are protected to the extent mentioned in s 501F, if an adverse decision is given under s 501(1) on an application for a visa other than protection visas, those who have applied for a protection visa which has been refused but have been granted a Bridging Visa pending the disposal of judicial review applications and appeals from those applications, enjoy no such protection.

117 Effectively, putting aside those persons who are entitled to a protection visa, an adverse decision under s 501(1) means that the person is left without any visa or any chance of a grant of any visa whilst in the migration zone. The person is liable to be detained (s 189) and liable to be removed from the country: s 198.

118 In this case, evidence that the appellant had been tortured was a matter relevant to the exercise of the Minister’s discretion even if that evidence was not sufficient to support a claim of a well founded fear of persecution which would have made the appellant eligible for a protection visa.

119 The two documents referred to in par 2.20 of the appellant’s reply to Direction No 21 [44] were reports from Dr Michael Lee dated 9 March 1999 and 21 January 2000.

120 The appellant contends that because no reference was made to those reports and his fear of torture in the decision record, the Minister did not have regard to his claim or the evidence upon which the claim was based. Again, for reasons already given, the assumption underlying the contention is wrong. However, even if this Court were to assume that the decision record contains the Minister’s reasons, the contention must be rejected.

121 Not only was the appellant’s claim and evidence before the Minister but the Minister was also provided with the Refugee Review Tribunal (RRT) decision of 3 April 1998.

122 That decision referred to his claims of beatings and torture in some detail. Indeed, the decision record expressly refers to one of his claims.

123 Dr Lee MBBS Dip Clin Hypnosis describes himself as a ‘Family and Marital Therapist as well as from (sic) consultant to STTARS (Survivors of Trauma and Torture Assistance and Rehabilitation Service) over the last four years.

124 In his first report, dated 9 March 1999, he said that he had seen the appellant twice and on each occasion for an hour. He saw the appellant’s wife with the appellant on the first occasion. He said:

‘It is absolutely clear that Stephen would have been executed many years ago, as have a number of his colleagues, had he not been an extremely talented and prominent soccer player. He played in the Junior International Soccer Tournament and later became Captain of the UAC Football Team and the APAPA Great African Stars Football Club side, and as such, had a high profile and was very well respected by the people. He used his sporting status as a platform to promote a voice for his people. Clearly, this was not in the best interests of the right wing, military style, Muslim government that is in power. This lead to him being persecuted and beaten, which I will describe in more detail later in this report.’

125 There is nothing in Dr Lee’s report which indicates that Dr Lee was qualified to express that opinion.

126 Dr Lee then referred to the appellant’s and the appellant’s parents’ house having been burned down. Whilst the appellant had claimed in the RRT that his house had been burned no claim was made that his parents’ house was burned. After discussing other claims by the appellant relating to his life in Nigeria, Dr Lee wrote:

‘EVIDENCE OF PHYSICAL TORTURE

1. Head and neck. He has a scar under his right eye which was from a knife slash wound, and this is still tender and swells from time to time. He has multiple scars on his skull which are mostly hidden by his hair.

2. Arms. He has scars on his left hand and both elbows where he was dragged across a bitumen road to be thrown into the back of a Landrover. He also has a scar on his right elbow which was a knife slash, and on his left arm where he was stabbed with a pick stabber.

At this point, Stephen was becoming visibly upset, shaking somewhat uncontrollably and was teary upon recalling some of these incidents. It was a very strong emotional reaction at recalling the events in even a very superficial way. A reaction that in my opinion, would not have been possible to fake or exaggerate. He was embarrassed by this automatic physiological response that came along with the memory.

I paused for a few moments and then gently encouraged him to persist.

3. Trunk. On the front left side of his abdomen he has a 10cm scar where he was made to crawl and slide across smashed glass on the floor. On his back he has 5 scars, some on his right loin, where again he was dragged over the tarred road. This scarring is quite extensive measuring some 15-20cm square.

4. Genitals. He tells me he had needles inserted into his penis and he was forced to sit on sharp steel pegs with no clothes on. Out of respect, I did not examine these areas.

5. Legs. He has multiple stab wounds to his right and left thighs and both knees are scarred from where he was forced to crawl across broken glass.

6. Feet. Both insteps were slashed by a knife, and exhibit scarring. He tells me this was done to try to prevent him from ever being able to play soccer again.

I asked him to recount the number of times that he had been taken to prison and beaten and tortured, and he couldn’t really tell me. He said that he had lost count, but that it was at least 8 to 10 times. This is not counting the number of times that he was beaten publicly. I should point out that it is usual for someone who has been repeatedly arrested, beaten and tortured, to be uncertain as to the exact nature and circumstance of some of these events. The tendency with time, is that they can blur together. This same phenomena has long been recognised with children recalling child sexual abuse. It has much to do with the trauma as well as the persons age.
It is important to understand that this government has the power to detain people without charge and without trial. It has been documented by Amnesty in their 1998 Guide and in the Third World Guide to have ordered executions.
I need to also stress also that merely discussing this information with him is a significant trauma to Fortress and Stephen. As previously mentioned, it was so distressing to Fortress that she was unable to attend the second session 2 weeks later. Stephen visibly broke down on several occasions while showing me the scars. It was very evident to me that he was fighting to stay in control and not break down completely.’

127 The appellant did not complain of torture of the kind or of the frequency recounted by Dr Lee to the RRT or anyone else.

128 There is no such claim in a Pre-Sentence Report of 30 May 2001 which was provided to the Minister.

129 The appellant provided a report of a psychologist, Mr Balfour, dated 30 July 2001 which contains some 17 pages which was before the Minister [par 34 of the decision record]. Mr Balfour recorded the appellant’s complaint of torture:

‘Mr Akpata said that the military harassed and humiliated him by slashing him under his right eye, placing a pen down the urethra of his penis, interrogating him under bright lights, frequently arresting him, beating him, and spitting on him. He said his family was never able to sleep restfully because they were always hypervigilant of the military’s possible approach.’

130 The history given to Mr Balfour would not account for Dr Lee’s observations and opinions. Indeed the history given to Mr Balfour is quite inconsistent with the history taken by Dr Lee.

131 Dr Lee’s second report of 21 January 2001, did not prove any of the matters the appellant claimed. I set out that part of the report which deals with this claim:

‘Conclusion

As I have previously stated, having had 5 yrs experience working with refugees, 20 yrs experience as a Family and Marital Therapist and having researched the situation in Nigeria to some degree, I remain convinced that this family will be executed, should they be forced return to Nigeria.

I therefore believe that the only reasonable course of action is for them to be offered permanent residence here in Australia where they can experience a life without fear, persecution and threat.’

132 Dr Lee’s second report does not establish that the appellant was tortured. Dr Lee again offers opinions on a number of matters upon which he is not qualified to speak. His claim that the family would be executed if they returned to Nigeria was not an opinion to which the Minister had to have regard. It was not an opinion that Dr Lee was qualified to express.

133 There is nothing to suggest that the Minister did not have regard to the appellant’s claims of torture and fear of torture if he had to return to Nigeria.

The Best Interests of the Children

134 Paragraph 2.3(c) of Direction No 21 provided that a primary consideration in the exercise of the Minister’s discretion was ‘in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children’. Those matters relating to the best interests of the children have been referred to earlier.

135 Direction No 21 put the appellant on notice of the matters the Minister would consider in the best interests of the children. The appellant responded to the Minister with detailed submissions as to the best interests of his children. He submitted that the best interests of his children would be served by the maintenance of the family unit and its preservation in Australia as opposed to Nigeria.

136 The appellant complains that the Minister’s decision was made in the absence of any consultation with his children, or was made "without any consideration given to the effect that separation is going to have on my children."

137 This contention highlights the difficulty in the underlying assumption that the decision record contains the Minister’s reasons.

138 There are no reasons but, if it be assumed that the decision record contains the Minister’s reasons, consideration was clearly given to the effect of separation on the children; so much is clear from the Minister’s ‘reasons’.

139 However, if the appellant wished the Minister to have before him submissions from the appellant’s family members, then the appellant could have arranged for the provision of those submissions to the Minister. The Minister was under no obligation to consult with the appellant’s children. In any event, it is clear from the decision record that the Minister proceeded on the basis that the appellant’s children did not wish to be separated from him.

140 The appellant could not point to any error on the part of the respondent Minister. He was simply dissatisfied with the way in which the Minister exercised his discretion. This is not a ground for review, or a ground of appeal from a judge on review.

Failure to Advise of the Consequences of an adverse decision pursuant to s 501 of the Act

141 The appellant submitted that he was denied procedural fairness in that the Minister failed to advise him that an adverse determination pursuant to s 501 of the Act would automatically result in the cancellation of any other visa held by the appellant pursuant to s 501F(3) of the Act.

142 The Minister’s decision to refuse the appellant the parent visa pursuant to s 501 of the Act was made on 11 June 2002. The visa that was automatically cancelled by virtue of the Minister’s determination under s 501(1) was the bridging visa A, which was the visa issued on 22 December 1995, and which had continued by reason of the appellant’s application for special leave to appeal to the High Court of Australia.

143 The appellant argued that if he had been notified that an adverse decision under s 501 would result in the cancellation of all visas and render him liable to be detained and removed from Australia under the Act (s 200), he would have simply left Australia with his family. He would not have risked becoming an unlawful non-citizen and as a result, being detained under s198 of the Act.

144 The Minister was called upon to exercise the power under s 501 in response to the appellant’s application for the parent visa. However, the appellant could not prevent the Minister exercising his powers under s 501. He could have frustrated the exercise under s 501(1) by withdrawing the application for the Parent 103 visa. But that would not have prevented the Minister proceeding under s 501(2) and concluding that the appellant’s bridging visa A should be cancelled.

145 The precipitating factor or factors which allowed the Minister to act under s 501 were the appellant’s criminal convictions. It should not be assumed that the Minister would not have acted under s 501(2) if the application for the parent 103 visa was withdrawn.

146 The question whether the Minister, in according procedural fairness, was required to notify the appellant of the legal consequences of a decision made under s 501 of the Act was dealt with at first instance. The primary judge said at [25]:

‘... while the decision of the Minister under s501(1) of the Act attracted a natural justice requirement in relation to his doing what was mandated by that subsection (ie: determining whether to refuse to grant a visa to a person who does not satisfy the Minister that he or she passes the character test), the obligation did not extend to explaining how, in the scheme of the Act, an adverse decision would be carried into effect. The focus of the natural justice obligation was the "character test" determination itself. If that is decided adversely to a visa applicant the consequences are, in the usual case, pre-ordained by the Act’

147 I agree with His Honour’s reasons, except that there were two foci of the natural justice obligation. The first was ‘the character test’ determination. The second was the exercise by the Minister of his discretion under s 501. There was no obligation on the Minister, if the Minister decided to invoke s 501, to warn the appellant of all the consequences which would flow by operation of the Act: Bunnag v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 293.

148 The Minister was obliged to accord the appellant procedural fairness in considering whether to refuse the appellant’s application for the parent visa. That meant that the Minister had to act fairly and to comply with the obligations of natural justice in reaching his decision. But the obligation to act in accordance with principles of natural justice and in particular to act fairly did not require the Minister to advise or warn the appellant of the consequences of an adverse decision. The Minister’s duty was to provide procedural fairness to the appellant in reaching his decision, so that the decision itself was fair. The consequences following from the decision were provided for in the Act itself.

149 The appellant knew that if the Minister concluded that the appellant did not pass the character test his application for the parent visa would fail. The letter of 26 February 2002 warned him of that: [29] above. The appellant also knew that if the application failed he would be liable to be removed or deported from the country. His response to Direction No 21 shows that. For example, in 2.16 he addresses the effects of being separated from his children: [40] above. He makes similar comments in par 2.17(c): [41] above. His complaint that he would be liable to be tortured confirms his awareness that the refusal of the Minister would make him liable to removal.

150 The thrust of the appellant’s complaint was that had he been aware that a refusal by the Minister would have led to the cancellation of the bridging visa A, he would have left the country with his family.

151 If he had taken that action he would have had to abandon his application for special leave to appeal to the High Court. He would not have been in the country. His bridging visa A would have been cancelled. He would not have had any way of returning absent a bridging visa B. He would have no right to travel to or remain in Australia. He would have been in exactly the same position as in due course he happened to be. He would have had to have left the country one way or the other or face detention. But in any event, his not knowing, if that be the case, did not mean that he could not have left the country with or without his family as soon as he was informed that his application for the parent visa was refused.

152 At any time after the Minister made his decision not to grant the appellant the parent visa the appellant could have left the country. The only consequence of the s 501 decision was that he had to leave immediately rather than have time whilst the Minister was considering his application to leave.

Irrelevant Material considered by the Minister

153 The appellant contended on this appeal that the Minister had regard to irrelevant and sensational material in reaching his decision. This ground was not agitated before the primary judge.

154 The Appeal Book contains two newspaper clippings, the first an extract from ‘the Sunday Mail’ dated 14 January 2001 under the headline ‘Cult Conman’s trail of debt and deceit’ and the second an extract from ‘The Advertiser’ dated 4 August 2001 under the headline ‘Preacher jailed on 41 fraud counts’.

155 Both of them refer to the appellant and both are highly critical of him. The second is an account of the sentence imposed in the Adelaide Magistrates Court. The first is a more general attack on his lifestyle and his activities in a religious sect ‘Lords Fellowship Inc’.

156 The two newspaper articles form part of EMR 1, an exhibit to Ms Reed’s affidavit. Ms Reed says that the documents contained in EMR 1 were the documents relating to and incorporating the decision by the Respondent to refuse the Prosecutor’s application for a Part (sic) 103 visa under s 501(1) of the Migration Act 1958 (Cth) (‘the Act’)’.

157 There is no doubt that the documents were before the Minister. Para 45 of the decision record states:

‘Mr Akpata has been the subject of media attention in South Australia regarding his crimes and immigration status. Copies of the relevant newspaper articles are at Attachment 1.’

158 It may be assumed that the documents were not supplied to the Minister by the appellant.

159 The documents are not relevant to the Minister’s decision whether the appellant passes the character test.

160 The two articles however are relevant to the exercise of the Minister’s discretion. The appellant was not aware that the articles had been provided to the Minister. He therefore did not address the contents of the articles.

161 The second article does not contain anything more than a report of the sentencing submissions and the sentencing hearing in relation to the appellant’s convictions for Workcover Fraud. The appellant could not have been prejudiced by the Minister having regard to the contents of that article.

162 However the other article is quite different. It contains allegations of the conduct of the appellant apart from the conduct which gave rise to his convictions. It is said that he left a ‘trail of broken promises debts and deceit’.

163 It is reported that under the guise of a religious sect which the appellant is said to lead, the appellant ‘is running up credit and organising multi million dollar deals – all in the name of the Lord’.

164 The report continues:

‘Campbelltown Community Church elder John West said his church was forced to close down after Akpata "touched" them for more than $10,000.

"Stephen preyed upon our goodwill" Mr West said.

"The money he took from the church would just be the tip of the iceberg.


"The iceberg underneath is all people and friends he has touched along the way.


"I personally would have lent him $4,000 or $5,000."


He said Akpata was assisting in pastoring the church when he encouraged them to make a loan of more than $10,000 to help get a book published.

The book, Why Prey, was released by Open Book Publishers, retailing for $13.95, shortly before Akpata was arrested in 1996 for defrauding $25,140 from the ANZ.

Both the publishers and the church were left out of pocket after the deal.

"The disturbing reality is he never paid the publishers, he got it published on credit," said Mr West.


"And he misled them and us for many thousands of dollars."

165 A subheading describes the appellant:

‘He is an absolute trouble maker ... he is a complete fraud.’

166 Another pastor’s account of his dealings with the appellant is described:

‘Another pastor, involved in the Adelaide College of Ministries who sponsored Akpata and his family into Australia, is more than familiar with the web of deceit.

The pastor, who did not wish to be named, said he was owed more than $11,000 in unpaid rent and loans.

"He looks smart; can speak well, he is just a great conman" the pastor said.

"He is an absolute trouble maker.

"We confronted him over his gambling in the casino, and his drinking.

"[Indistinct] ... he would get very aggressive and angry and say we are against black people, racist or ... prejudiced.

"Then one day he disappeared into this smoke, leaving behind all his debts.

It cost thousands upon thousands for people in our church; some are too embarrassed to mention it; some I do know about.

"He is a complete fraud. He is not a pastor; he is a conman.

"He is using God’s name to prey on other people. I would like him to be exposed so more people don’t get bitten by him."

The pastor said he was stunned when told Akpata was driving a BMW and trying to buy a million-dollar penthouse.

"I couldn’t believe it, he shouldn’t even be in the country let alone being allowed to run around racking up debt".’

167 The penthouse which the appellant was allegedly seeking to purchase is depicted in a photograph.

168 The article also makes reference to a dealing the appellant had with another person in relation to a Christian gathering which the appellant had promoted.

169 The article is highly critical of the appellant. It refers to matters not the subject of the criminal convictions. These matters were relevant to the appellant’s character and would have been relevant to the exercise of the Minister’s discretion.

170 It must be assumed that the Minister read this article. It was provided to the Minister for that purpose. It was considered by his Department as being relevant to his assessment under the Act. The Minister’s certificate shows that he ‘considered all relevant matters’.

171 In those circumstances procedural fairness dictated that the appellant be informed that the article had been provided to the Minister so that the appellant could refute the allegations contained in the article or give whatever explanation he could about those allegations: Muin v Refugee Review Tribunal and Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601.

172 In my opinion the failure to give that opportunity to the appellant meant the appellant was denied procedural fairness. In those circumstances the appellant’s appeal must succeed and the decision made by the Minister quashed.

173 The question whether the Minister may refuse the appellant’s application for a visa under s 501(6)(a) of the Act must be re-considered by the Minister in accordance with these reasons.

I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Lander.



Associate:

Dated: 25 March 2004



Counsel for the Applicant: The appellant appeared in person



Counsel for the Respondent: S Maharaj



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 21 November 2003



Date of Judgment: 25 March 2004



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