Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1118

FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1118 STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 473 of 2003 MANSFIELD J ADELAIDE 14 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 473 OF 2003

BETWEEN: STEPHEN OGHO AKPATA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 14 OCTOBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The orders sought on the notice of motion of the appellant of 4 August 2003 be refused. 2. The appellant pay to the respondent costs of the notice of motion. 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 473 OF 2003

BETWEEN: STEPHEN OGHO AKPATA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 14 OCTOBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 11 June 2002 the respondent refused an application for a class 103 parent visa by the appellant on the character ground: s 501 of the Migration Act 1958 (Cth) (the Act). A challenge to that decision was dismissed on 1 May 2003: Akpata v Minister for Immigration & Multicultural Affairs [2003] FCA 389. An appeal from that decision is listed for hearing before the Full Court on 21 November 2003. 2 By motion of 4 August 2003, the appellant sought an order for his immediate release from immigration detention, having been in immigration detention as an unlawful non-citizen since June 2002 following the respondent's decision of 11 June 2002. I dealt with the first of the two grounds upon which that application was made in reasons for orders published on 10 September 2003. The second ground upon which the appellant claimed to be illegally detained is that he has, and still has, a valid bridging visa class A granted on 22 December 1995 which has not been cancelled, notwithstanding the decision of the respondent of 11 June 2002 and s 501F(3) of the Act. The appellant was given an opportunity to adduce evidence in support of his claim. 3 He has produced the visa. He has also produced other material, much of which pre-dates the decision of 11 June 2002 and does not, in my view, advance his claim. The other document upon which he specifically relies is a letter from an officer of the respondent to the appellant and his family dated 16 December 2002 which relevantly reads: 'ADVICE TO PERSONS GRANTED A BRIDGING A VISA Name of visa holder: Mr Stephen AKPATA (DOB – 24/11/1962) Dependents: Mrs Fortress AKPATA (17/06/1966) Miss Treasure Jemimah AKPATA (17/09/1993) Miss Precious Oghenemaro AKPATA (20/03/1990) … You have been granted a Bridging A visa. Your Bridging A visa will permit you to remain lawfully in Australia while your substantive visa application (ie the application you have made for a protection visa) is decided. The bridging visa will come into effect when any other visa(s) you hold ceases. Your Bridging A visa permits you to remain in Australia until 28 days after notification of the decision on your substantive visa application and, if that application is refused, continues to keep you lawful until 28 days after all avenues of merits review have been exhausted. There are no work limitations on your Bridging visa A. The date your current substantive visa ceases is shown on the visa label. Note: If you breach a condition of your visa, while that visa is in effect, the visa may be cancelled.' 4 The officer of the respondent subsequently wrote to the appellant's wife by letter of 18 December 2002. The letter said the earlier letter of 16 December 2002 was incorrect. It pointed out the appellant's previous visa had been cancelled (no doubt referring to the decision of the respondent under s 501 on 11 June 2002 and the operation of s 501F(3)). It further pointed out that the appellant was not currently the holder of a bridging visa. It enclosed a corrected advice, which relevantly was in the following terms: 'ADVICE TO PERSONS GRANTED A BRIDGING VISA B (Protection Visa Applicants) Name of visa holder(s): Fortress AKPATA (DOB – 17/06/1966) Precious Oghenamaro AKPATA (20/03/1990) … You are currently the holder of a Bridging Visa B. Your Bridging Visa B will permit you to remain lawfully in Australia while your substantive visa application (ie. the application you have made for permanent residence in Australia) is decided. Your Bridging Visa B (BVB) permits you to remain in Australia until 28 days after notification of the decision on your substantive visa application, or should you withdraw your application. If your application is refused, then the BVB continues to keep you lawful until 28 days after a decision on any application for merits review you may make. … POSSIBLE ENTITLEMENT TO REGISTER FOR MEDICARE Persons who apply for permanent residency in Australia may be eligible to join the national Medicare health insurance scheme. Please note – an exception is applicants under the "aged parents" category, who cannot access Medicare unless their overseas country of residence has a reciprocal health insurance arrangement with Australia. If you have not already done so, then it would be in your interest to make enquiries to your nearest Medicare officer, or telephone the Health Insurance Commission enquiry line – tel: 132011.' 5 The appellant's oral contentions are that the visa of 22 December 1995 remains in force as acknowledged by the letter of 16 December 2002, and that the effect of the decision made on 11 June 2002 under s 501 of the Act did not operate to cancel the bridging visa he then held, notwithstanding s 501F(1) and (3) of the Act, because it was a 'protection related bridging visa', and alternatively that the letter of 16 December 2002 evidences the grant of a fresh bridging visa class A. 6 I do not accept the second contention. It is plain from the material adduced by the appellant that the visa which he claims still to be in force is that granted on 22 December 1995. Section 501F(1) and (3) provide: '(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.' Subject to the first argument, the wording of the provision is clear. The respondent is taken to have decided to cancel the visa held by the appellant on 11 June 2002 by reason of the refusal of the application for a subclass 103 parent visa on the character ground under s 501 of the Act. The letter of 16 December 2002 does not amount to the grant of a fresh visa to the applicant. It is not expressed in those terms. There was no application then being considered by the respondent or officers of the respondent for the grant of a bridging visa to the appellant. He was not eligible to apply for such a visa: s 46(1)(d). An officer of the respondent could not administratively by correspondence override the operation of s 501F(3) of the Act. 7 The appellant contends that the subsequent letter of 18 December 2002 misstates the reason for the letter of 16 December 2002. He points to material which, he contends, is not consistent with the letter of 16 December 2002 having been responsive to a request by the appellant's wife for confirmation of eligibility to Medicare benefits. It is unnecessary to address that material for the reasons I have given. 8 The primary argument involves reading into the words 'protection visa' in s 501F(3)(b) the words 'protection related bridging visa'. It is not suggested that the bridging visa held by the appellant at 11 June 2002 was otherwise a visa specified in regulations for the purpose of s 501F(3) of the Act. 9 There are provisions in the Act in which the expression 'protection related bridging visa' is used: see s 91X(1)(b) and (d). That term is defined in s 91X(3) to mean a bridging visa granted as a result of an application for a protection-related bridging visa. The term 'application for a protection related bridging visa' is also there defined to mean an application for a bridging visa, where the application for the bridging visa is, or has been, an application for a protection visa. 10 The difficulty with the appellant's contention is that it is a 'protection visa' only to which reference is made in s 501F(3) of the Act. Section 31 provides for there to be prescribed classes of visa. Section 36 specifically creates the class of visa known as protection visas. It specifies the criteria for eligibility for a protection visa. The appellant has not satisfied the Minister that he is eligible for such a visa. That decision has been upheld on review. 11 I do not consider that the term 'protection visa' specifically described in the Act is intended to be used in a different sense in s 501F(3) to mean 'a protection visa or a protection related bridging visa'. If that had been intended by the legislature, it could readily have so provided. I note that s 501F was inserted in the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) effective from 1 June 1999. It was not further amended when s 91X was introduced into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The purpose of s 91X is a refined and limited one, namely to prevent the publication of the name of a person who has applied for a protection visa, or who has applied for a protection related bridging visa, so as to avoid the risk of the publication of the name leading to the applicant for the visa being recognised as a refugee sur place by reason of the application. 12 Consequently, I do not consider that the contentions of the appellant are correct. I formally refuse the orders sought in the appellant's notice of motion of 4 August 2003. The appellant should pay to the respondent costs of the notice of motion. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.