Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402

FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402

STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO S 68 OF 2000 O'LOUGHLIN J ADELAIDE 11 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 68 OF 2000

BETWEEN: STEPHEN OGHO AKPATA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 11 APRIL 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: The application be dismissed with costs. 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 S 68 OF 2000

BETWEEN: STEPHEN OGHO AKPATA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 11 APRIL 2001

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicants in these proceedings are Mr Stephen Ogho Akpata, his wife, Mrs Fortress Akpata and their son, Precious Akpata. All three are citizens of Nigeria. Mr and Mrs Akpata also have a daughter, Treasure Jemima Akpata who, was born in New Zealand on 17 September 1993; she is a citizen of New Zealand and is not a party to this application. 2 Mr and Mrs Akpata left Nigeria with their son, Precious, in February 1991. They first went to New Zealand, but left New Zealand for Australia, arriving with Treasure on 10 February 1994. Entry to Australia was achieved through Mr Akpata having obtained a student's visa. The family travelled back to New Zealand for about one month in mid 1995 and re-entered Australia on 31 July 1995. 3 On 22 December 1995, Mr Akpata lodged an application for a Protection Visa on his own behalf and on behalf of his family. That was the start of a long forensic journey that has led to this present application – the third occasion upon which the Akpata's have been before the Federal Court. 4 Initially, their application was refused by a delegate of the Minister for Immigration and Multicultural Affairs and that decision was affirmed by the Refugee Review Tribunal ("the Tribunal"). However, on 10 February 1998, the Federal Court overruled the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration. The Tribunal, differently constituted, reaffirmed the delegate's decision for a second time on 18 May 1999. Once again, the applicants sought review of the Tribunal's decision by the Federal Court. On the second occasion, the matter did not proceed to a formal hearing; the Minister recognised that there had been an error in the Tribunal's decision and, with the consent of all parties the Court, on 29 November 1999, set aside the Tribunal's decision and remitted the matter back to the Tribunal. On 19 May 2000, a differently constituted Tribunal affirmed the delegate's decision for the third time; it is in respect of this third decision that the applicants are presently before the Court; they have claimed that this Court should intervene because of errors that are said to exist in the Tribunal's decision. 5 The applicants claimed that they are in fear of persecution if they were to return to Nigeria on the grounds of their race, their religion and also because of Mr Akpata's political opinions. Mr Akpata claimed that he had been subjected to detention and torture whilst in Nigeria whilst Mrs Akpata separately claimed that she had been subjected to detention and maltreatment whilst in detention. Both of them claimed that they had been the subject of various attacks, including the burning of their house; they also alleged that other family members had been persecuted for the same reasons. 6 In a very lengthy set of reasons of sixty-seven pages, the Tribunal covered, extensively, the history and the personal circumstances of Mr and Mrs Akpata before concluding that their application and that of their son should be dismissed. Arising out of those reasons, the applicants have mounted two challenges. In the first place, they submitted that the Tribunal had misconstrued "the real chance" test and, in the second place, they alleged that the Tribunal had fallen into error when it failed to put before the applicants certain background material about Nigeria which the Tribunal relied on in coming to its decision.