FEDERAL COURT OF AUSTRALIA Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 PRACTICE AND PROCEDURE – appellant not attending the appeal – appeal from judgment dismissing an application in the absence of the appellant – whether an appeal is the appropriate procedure – other procedures available under the Federal Court Rules Migration Act 1958 (Cth) s 501 Federal Court Rules O 32 r 2(2), O 35 r 7(2)(a) Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 285 cited Vint v Hudspith (1885) 25 Ch D 322 cited Crotty v Clarke (1896) 22 VLR 594 cited Shocked v Goldsmith [1998] 1 All ER 372cited Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] 2 Qd R 447 cited Rosing v Ben Shemesh [1960] VR 173 cited Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (in liq) (1995) 58 FCR 125 cited STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 117 of 2005 BRANSON, FINN & MANSFIELD JJ ADELAIDE 30 NOVEMBER 2005 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 117 OF 2005 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: STEPHEN OGHO AKPATA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: BRANSON, FINN & MANSFIELD JJ DATE OF ORDER: 30 NOVEMBER 2005 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 117 OF 2005 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: STEPHEN OGHO AKPATA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: BRANSON, FINN & MANSFIELD JJ DATE: 30 NOVEMBER 2005 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The appellant, Stephen Akpata, has not appeared at the hearing of this appeal which itself is without merit. Mr Akpata has been notified as to the date, time and venue of this hearing. 2 In April 2004, Mr Akpata brought proceedings in this Court seeking an injunction to restrain the respondent Minister from making a decision on a Parent Visa Application until "all matters in the Supreme Court of South Australia finalise the two matters which relates [sic] to a decision under s 501(1) of the Migration Act 1958". Interlocutory relief was sought in the same terms. 3 The two Supreme Court matters involve appellate processes in which Mr Akpata is seeking to impugn long-standing prior criminal convictions. On 30 July 1996, he pleaded guilty and was convicted of four counts of false pretences and was sentenced to twelve months imprisonment with a non-parole period of five months. He was also ordered to pay $20,193.00 to a bank. In April 2001, he was convicted on 25 counts of dishonesty arising out of claims made on WorkCover Corporation in respect of an alleged injury to his hand. He was sentenced to 12 months imprisonment with a non-parole period of six months. 4 When the then Minister was considering the Parent Visa Application he relied on those convictions in exercising his power under s 501 of the Migration Act 1958 (Cth) in relation to Mr Akpata. The Minister determined that the appellant did not pass the character test and accordingly refused his visa application. That decision was ultimately quashed by the Full Court and the application for the Parent Visa was remitted to the Minister for further consideration. The reasons for that decision being quashed are not of present relevance. 5 In May 2001, Mr Akpata appealed from the WorkCover convictions to the Supreme Court. That appeal was heard by Mullighan J in October 2001 who dismissed the appeal. An application seeking leave to appeal from that decision was made to the Supreme Court of South Australia in May 2003. That application was well out of time under the Court's rules and had not been heard at the time of the decision presently appealed from. In May 2003, Mr Akpata also appealed to the Supreme Court against the false pretences convictions. He sought an extension of time in which to appeal which was refused by Perry J in August 2003. At the same time, his Honour dismissed an application for leave to appeal from his order refusing the extension. In September 2003, Mr Akpata applied to the Full Court of the Supreme Court for leave to appeal from Perry J's decision. That application had not been prosecuted by the time Lander J gave his decision giving rise to this appeal. 6 The claim for interlocutory relief in the present matter was heard by Lander J on 24 May 2004. It was dismissed, his Honour not being satisfied that there was any material to support the application to restrain the Minister from performing the duties imposed upon her. This decision was upheld by the Full Court of this Court in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 285. 7 The principal application came before Lander J on 10 February 2005 and his Honour directed Mr Akpata to file any evidence upon which he intended to rely within six weeks of the date of the directions hearing. No such material was filed. At an April directions hearing when this was drawn to the applicant's attention he sought an adjournment of his application though he offered no evidence as to why the two Supreme Court proceedings had not been prosecuted. The adjournment was not granted and the matter set down for hearing on 25 May 2005. 8 The February direction was not complied with by the time of the hearing of the application and consequently no evidence was before Lander J as to when the Supreme Court proceedings were to be heard and why they had not been heard. 9 Mr Akpata did not attend the trial of his application despite being put on notice of it. Neither did he have prior communications with the Court about his ability or inability to attend. In these circumstances Lander J made an order under O 32 r 2(1)(d) of the Federal Court Rules that the trial proceed generally. 10 At the hearing of the application his Honour concluded that there was no evidence upon which he could find there is any real risk that the Minister would not consider Mr Akpata's application for a Parent Visa according to law and in accordance with the order of the Full Court. Lander J noted the age of the convictions Mr Akpata now seeks to impugn, his unexplained inaction in prosecuting his Supreme Court proceedings and the consequential absence of material in the proceeding before his Honour. 11 Mr Akpata has not been, and is not, legally represented in this matter. His grounds of appeal are: 1. The judge erred in law; 2. "I did not have a hearing in this matter and my arguments were not considered"; and 3. The judge erred in that "he should have adjourned the hearing to another date when he sat for the matter as the audio was not clear and I wrote 26-5-05 for the hearing" [the trial date was 25-5-05]. 12 No written submissions have been filed in the appeal. No affidavits have been filed indicating (a) such steps as he took on and after 25 May 2005 to have his mistake addressed; and (b) the material, if any, that he would have placed before Lander J relating to the prosecution of the Supreme Court proceedings. 13 As Mr Akpata was absent from the hearing giving rise to Lander J's judgment, the course he ought properly to have taken is to have applied to have the judgment set aside under O 32 r 2(2) of the Federal Court Rules: Vint v Hudspith (1885) 25 Ch D 322; Crotty v Clarke (1896) 22 VLR 594. On such an application Mr Akpata would, in a matter such as this, have had to show he had an arguable case in the principal proceeding and to explain his absence at the hearing: cf Shocked v Goldsmith [1998] 1 All ER 372 at 381; Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] 2 Qd R 447; Rosing v Ben Shemesh [1960] VR 173. It was equally open to Mr Akpata to have sought to have Lander J's order set aside under O 35 r 7(2)(a) of the Federal Court Rules: see Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (in liq) (1995) 58 FCR 125. 14 Given the availability of the above procedures, appeals of the present character are to be discouraged. An appeal should not ordinarily be brought against orders which are open to be set aside on an application to the Judge who made the orders. Nonetheless, we consider it to be expedient in the interests of justice to accede to the request of counsel for the Minister to hear and determine this appeal rather than require the appellant first to apply to Lander J for an order setting aside his Honour's judgment. 15 As to Mr Akpata's grounds of appeal, the first – that his Honour erred in law – is untenable. Lander J was entitled under O 32 to take the course he did. Equally there is no demonstrated error of law in the order his Honour made. 16 As to the remaining two grounds, even if it be accepted that Mr Akpata's absence was caused by a mistake, there is no material before this Court, as there was not before Lander J, to suggest that any useful purpose would be served by setting aside the order appealed from and allowing Mr Akpata to prosecute his application. His application was, in our view, demonstrably devoid of merit. 17 We will dismiss the appeal and order the appellant to pay the respondent's costs of the appeal to be taxed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn & Mansfield. Associate: Dated: 30 November 2005 The Appellant did not appear. Counsel for the Respondent: Ms S Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 30 November 2005 Date of Judgment: 30 November 2005