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1 The applicant has applied for a ‘parent 103 visa’. The applicant instituted proceedings in this Court seeking final and interlocutory injunctions to restrain and prevent the respondent (the Minister) from making any decision in relation to his application for that visa until certain proceedings in the Supreme Court of South Australia are finalised. The primary Judge dismissed the application for an interlocutory injunction. The applicant seeks leave to appeal from the decision of the primary Judge pursuant to s 24(1A) of the Federal Court of Australia Act, 1976 (Cth). For the reasons given below that application is refused.

2 On 26 July 1999 the applicant applied for a Parent (Migrant) Class AX (Subclass 103) (Parent) visa. That application was considered by the Minister personally. On 11 June, 2002, the Minister refused to grant that visa on the basis that the Minister was not satisfied that the applicant passed the character test: see s 501(1) of the Act. The effect of that decision, at least if it were valid, was to cancel the bridging visa then held by the applicant: see s 501F(3) of the Act. Consequently the applicant was treated as an ‘unlawful non citizen’ and was taken into detention on 25 May 2004 pursuant to s 189 of the Act. The applicant instituted proceedings challenging the Minister’s decision under s 501 of the Act. He was ultimately successful in those proceedings: see Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (Akpata) and the decision of the Minister refusing to grant the applicant a parent visa was quashed. The basis for that decision was that the applicant had not been afforded procedural fairness in the decision making process. The applicant was consequently released from detention.

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 285 (19 November 2004)
Last Updated: 24 November 2004

FEDERAL COURT OF AUSTRALIA


Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 285



























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

SAD 110 of 2004




BLACK CJ, MOORE & SELWAY JJ
19 NOVEMBER 2004
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 110 OF 2004


BETWEEN: STEPHEN OGHO AKPATA
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: BLACK CJ, MOORE & SELWAY JJ
DATE OF ORDER: 19 NOVEMBER 2004
WHERE MADE: ADELAIDE


THE COURT ORDERS THAT:

1. Leave to appeal from the decision of Lander J given on 24 May 2004 dismissing the application for an interlocutory injunction be refused;
2. The applicant pay the respondent’s costs of the appeal.









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 SAD 110 OF 2004


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


JUDGES: BLACK CJ, MOORE & SELWAY JJ
DATE: 19 NOVEMBER 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

THE COURT:

1 The applicant has applied for a ‘parent 103 visa’. The applicant instituted proceedings in this Court seeking final and interlocutory injunctions to restrain and prevent the respondent (the Minister) from making any decision in relation to his application for that visa until certain proceedings in the Supreme Court of South Australia are finalised. The primary Judge dismissed the application for an interlocutory injunction. The applicant seeks leave to appeal from the decision of the primary Judge pursuant to s 24(1A) of the Federal Court of Australia Act, 1976 (Cth). For the reasons given below that application is refused.

2 On 26 July 1999 the applicant applied for a Parent (Migrant) Class AX (Subclass 103) (Parent) visa. That application was considered by the Minister personally. On 11 June, 2002, the Minister refused to grant that visa on the basis that the Minister was not satisfied that the applicant passed the character test: see s 501(1) of the Act. The effect of that decision, at least if it were valid, was to cancel the bridging visa then held by the applicant: see s 501F(3) of the Act. Consequently the applicant was treated as an ‘unlawful non citizen’ and was taken into detention on 25 May 2004 pursuant to s 189 of the Act. The applicant instituted proceedings challenging the Minister’s decision under s 501 of the Act. He was ultimately successful in those proceedings: see Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (Akpata) and the decision of the Minister refusing to grant the applicant a parent visa was quashed. The basis for that decision was that the applicant had not been afforded procedural fairness in the decision making process. The applicant was consequently released from detention.

3 The current application is to prevent the Minister from reconsidering the application for a parent visa, or at least to prevent the Minister from refusing it pursuant to s 501 of the Act, until the Supreme Court proceedings are finalised. The application seeks final and interlocutory injunctions in the same terms.

4 Section 501 of the Act provides:

‘(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
......

Character test

(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;


the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.


Otherwise, the person passes the character test.

Substantial criminal record

(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

...

Pardons etc

(10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if:
(a) the conviction concerned had been quashed or otherwise nullified; or

(b) the person has been pardoned in relation to the conviction concerned.’
5 There was no evidence before the primary Judge to show that the Minister was or is currently intending to refuse the visa at all, or even that the Minister had the matter under active consideration. It is clear from the decision in Akpata and from the terms of the Act itself, that the Minister is required to afford natural justice to the applicant before exercising her powers under s 501(1) of the Act: contrast ss 501(3) and (5). In the ordinary course that might include not only the matters considered by the Minister on the previous occasion, but also any relevant matters that had arisen since that time, including the significance (if any) of the Supreme Court proceedings. There was no evidence before the primary Judge to show that the process of affording natural justice to the applicant had commenced or even that it was intended that it should commence. There was no evidence before the primary Judge to suggest that the Minister was proposing to make a decision without first affording the applicant an opportunity to make submissions in relation to it.

6 Nevertheless, the applicant apparently fears that the Minister will refuse his application for a visa because the Minister will conclude that the applicant has a ‘substantial criminal record’ and that it is appropriate in the exercise of her discretion to refuse him the visa pursuant to s 501(1) of the Act. It may be presumed that the reason why the applicant expects that the Minister may reach that conclusion is that she did so on the previous occasion. The Minister’s decision on that occasion rested upon two convictions and sentences that had been imposed upon the applicant. Those convictions and sentences are set out in the reasons of the primary Judge:

‘The applicant pleaded guilty and was convicted of four counts of false pretences in the Adelaide Magistrates Court on 30 July 1996 (the false pretences convictions). He was sentenced to 12 months imprisonment with a non-parole period of five months and was ordered to pay $20,193 to the Australian and New Zealand Banking Group Ltd.

On 11 April 2001, following a trial, the applicant was convicted of 25 counts of dishonesty offences. On 3 August 2001 the applicant was sentenced to 12 months imprisonment, this time with a non-parole period of six months. Those convictions arose out of claims made on Workcover Corporation arising out of an alleged injury to the applicant’s left hand (the Workcover convictions).

Both sentences independently and cumulatively would mean that the applicant has a substantial criminal record and it would also mean that he would be liable not to pass the character test.’

7 Subsequent to the Minister’s decision on the first occasion the applicant has sought to appeal to the Supreme Court of South Australia against these convictions. In relation to the false pretences convictions, on 29 August 2003 the applicant sought leave from the Supreme Court to appeal out of time. The application was made some 6 years after the sentence had been wholly served. That application was dismissed by Perry J on 29 August 2003. His Honour also dismissed an application for leave to appeal from his decision. On 15 September 2003 the applicant applied to the Full Court of the Supreme Court for leave to appeal from the decision of Perry J. It seems that this application is still current.

8 In relation to the Workcover convictions, the applicant’s appeal was heard by Mullighan J who dismissed it. The applicant has sought leave to appeal from the decision of Mullighan J. That application for leave to appeal has not yet been considered by the Supreme Court.

9 The result is that legal proceedings are currently before the Supreme Court which, if they are successful, could result in some variation of the convictions that were imposed upon the applicant.

10 The applicant says that whilst those proceedings are not finally disposed of the Minister has no power to make any decision refusing his application for a parenting visa. The applicant refers to s 501(10) of the Act and says that the powers in s 501(1) of the Act should be read down so as to give effect to the Parliamentary intent revealed in subs (10). The applicant says that an injunction should be issued against the Minister to restrain her from further considering his application for a visa until the Supreme Court proceedings are finalised.

11 It is not altogether clear whether the application before the primary Judge and dealt with by him, was intended by the applicant to be an application for an interlocutory injunction or for a final injunction. However, the primary Judge dealt with the application as if it were an application for an interlocutory injunction. Consequently, his Honour asked himself whether there was a serious question to be tried and whether the balance of convenience favoured the grant of an injunction, this being the relevant test for the grant of an interlocutory injunction: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153-156.

12 The Minister submitted before the Court that the judgment of the primary Judge dismissed the application for an interlocutory injunction only. Although the applicant had not sought leave to appeal from that decision as was required by s 24(1A) of the Federal Court of Australia Act, 1976 (Cth) the Minister consented to the applicant being granted an extension of time in which to seek such leave and consented to the applicant making an oral application for such leave. The applicant did so.

13 The consequence is that the proceeding before us is an application for leave to appeal from the order of the primary Judge dismissing the application for an interlocutory injunction. The application for a final injunction remains to be dealt with by a single Judge.

14 The primary judge dismissed the application for an interlocutory injunction because he concluded that there was not a serious question to be tried, given his view about the prospects of success of the Supreme Court proceedings. Nor did his Honour think that the balance of convenience lay with the applicant, given that the Minister had not determined whether or not to refuse a visa in any event.

15 The applicant argued before us that he had good prospects of success in the Supreme Court proceedings. The applicant also argued that whilst proceedings remained on foot in the Supreme Court the Minister lacked the power to refuse the applicant a visa pursuant to s 501 of the Act, whether or not the prospects of success were good or not.

16 The short answer to the application for leave to appeal is that, on the material before the primary Judge, it was simply inappropriate to make any injunction restraining the Minister from making any decision. In the absence of any evidence suggesting that the Minister was intending to refuse the applicant’s application for a visa prior to the final resolution of the proceedings in the Supreme Court or of any evidence suggesting that the Minister would not afford natural justice to the applicant before making any decision, there was simply no basis upon which an interlocutory injunction could have been granted. The decision of the primary Judge to dismiss the application for an interlocutory injunction was plainly justified on this basis alone.

17 In these circumstances it is unnecessary for us to express any view on the other contentions raised by the applicant.

18 The application for leave to appeal from the order made by the primary Judge on 24 May 2004 is refused with costs.


I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.


Associate:

Dated: 19 November 2004



Counsel for the Applicant: The applicant appeared in person



Counsel for the Respondent: S Maharaj



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 16 November 2004



Date of Judgment: 19 November 2004



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