Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 709

FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 709

PRACTICE AND PROCEDURE – where applicant did not appear – whether matter should be dismissed summarily or whether the trial should proceed generally – whether application for injunction should be granted – application dismissed.

Migration Act 1958 (Cth)

Federal Court Rules, O 32 r 2, O 32 r 2(c), O 32 r 2(d)

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 285 cited STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 54 of 2004 LANDER J 25 MAY 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD54 OF 2004

BETWEEN: STEPHEN OGHO AKPATA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 25 MAY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the respondent's 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 SAD54 OF 2004

BETWEEN: STEPHEN OGHO AKPATA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE: 25 MAY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 These proceedings were listed for hearing this morning. When the matter was called on there was no appearance by the applicant. The applicant was called in the precincts of the Court but there was no appearance. I adjourned the proceedings so that my Associate could inquire as to whether or not there had been any communication between the applicant and the registry in relation to the applicant's ability or inability to attend this morning. I am advised there has been no communication. 2 The Minister's counsel advised me that there had been no communication by the applicant to the Minister in relation to his attendance this morning. 3 The Minister's counsel, Ms Maharaj, applied, pursuant to O 32 r 2 of the Federal Court Rules, for an order either dismissing the action summarily, under O 32 r 2(c), or for an order that the trial proceed generally: O 32 r 2(d). It seemed to me that it would be appropriate to require the respondent to put her arguments and, in those circumstances, I directed that the trial proceed generally. Having adopted that course, then, I should give my reasons for my decision. 4 Those reasons follow. 5 On 1 April 2004 the applicant brought proceedings in this Court seeking an injunction against the respondent restraining the respondent 'from making any decision on the parent 103 visa application that have [sic] been sent back by the Full Federal Court not before all matters in the Supreme Court of South Australia finalise the two matters which relates to a decision under section 501(1) of the Migration Act 1958'. 6 The applicant also sought interlocutory relief in the same terms. The application was accompanied by an affidavit to which the applicant exhibited extracts from the Copy of Record in the Supreme Court of South Australia relating to two matters in which the applicant had been involved. The affidavit lacked detail. 7 On 3 May 2004 I made an order that the applicant file and serve any affidavits upon which he intended to rely. 8 On 24 May 2004 I refused the applicant's application for interlocutory relief. 9 At the relevant time the applicant was a non-citizen who was entitled to remain in Australia because he held a bridging visa and was an applicant for a parent visa. 10 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 offences). 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 Limited. 11 On 11 April 2001, following a trial, the applicant was convicted of 25 counts of dishonesty offences. 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). On 3 August 2001 the applicant was sentenced to 12 months' imprisonment, this time with a non-parole period of six months. 12 When the Minister was considering the applicant's application for a parent 103 visa, the Minister relied on those convictions in exercising his power under s 501 of the Migration Act 1958 (Cth) (the Act) in relation to the applicant. Thus, he determined that the applicant did not pass the 'character test' as defined in s 501(6) of the Act and refused his application for a parent 103 visa. 13 The decision to refuse the parent visa meant that the bridging visa, which entitled the applicant to remain in Australia, was cancelled and the applicant was liable to be removed under s 198 of the Act. 14 The applicant sought review of that decision. His application was dismissed by a judge of this Court but, on appeal, the Minister's decision was quashed by the Full Court and the applicant's application for a parent visa was remitted to the Minister for further consideration. 15 On 4 May 2001 the applicant appealed from the WorkCover convictions to the Supreme Court and that appeal was heard by Mullighan J who, on 31 October 2001, dismissed the appeal. 16 On 30 May 2003 the applicant issued an application in the Supreme Court of South Australia seeking leave to appeal from the order of Mullighan J dismissing his appeal. 17 The application was well out of time under the Supreme Court Rules. Although the application was listed on a number of occasions, it had not been heard by the time I gave judgment on the interlocutory application. 18 As I noted in my reasons for judgment, in relation to the interlocutory application, no evidence was brought forward to explain why the application for leave had not been heard at the time of that hearing. 19 On 30 May 2003 the applicant also appealed to the Supreme Court against the false pretences convictions. That appeal was nearly seven years out of time. The applicant sought an extension of time within which to appeal which was refused by Perry J on 29 August 2003. On the same day, Perry J dismissed an application for leave to appeal from his order refusing an extension of time within which to appeal. 20 Apparently, on 15 September 2003, the applicant applied to the Full Court of the Supreme Court for leave to appeal from Perry J's decision. That application had not been prosecuted or heard at the time I gave my decision refusing the application for interlocutory relief. 21 Like the proceedings before Mullighan J, there was no explanation as to why that proceeding had not been heard or determined. 22 I refused the application for the interlocutory injunction on the ground that the applicant had not made out that there was a serious question to be tried. As my reasons show, I was of the opinion that the applicant's prospects of success in both Supreme Court proceedings were slight. 23 I said, after pointing out the absence of evidence explaining the delay in the two Supreme Court applications: '30 I am not satisfied that there is any material before me to support the application to restrain the Minister from performing the duties imposed upon her by the Act. She has a duty to consider the applicant's application and she should not be restrained from exercising that duty without evidence that the performance of that duty could lead to an injustice. 31 On an application such as this, the applicant must establish that there is a serious question to be tried. 32 In my opinion, the applicant has not passed the threshold test necessary to make out that matter. In my opinion, he has not demonstrated that there is any serious question to be tried. I am also not satisfied that at the present time, even if there were a serious question to be tried, the balance of convenience necessarily falls the way of the applicant. It may be that if the Minister considered the application and exercised the power given her under s 501 and cancelled the applicant's existing visa under that section, the applicant may, in those circumstances, be able to demonstrate that the balance of convenience lies his way but, at this stage, it cannot be said, in my opinion, that the balance of convenience is with the applicant, simply because the Minister may consider, as she is obliged, his application for a parent visa.' 24 The applicant sought leave to appeal from my decision: Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 285. The Full Court (Black CJ, Moore and Selway JJ) refused leave to appeal. The Full Court said at [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.' 25 The matter came on before me again on 10 February 2005 when I made the following orders and directions: '1. The applicant to file any evidence upon which the applicant intends to rely on [sic] prosecution of the action within six weeks. 2. The respondent to file any evidence upon which the respondent intends to rely within nine weeks.' 26 The matter came on before me on 21 April 2005 for a directions hearing. At that stage, the applicant had filed no further evidence nor, indeed, had the respondent, but that was hardly surprising in circumstances where there was no evidence adduced by the applicant which needed to be addressed by the respondent. 27 I drew to the applicant's attention his failure to comply with my direction made on 10 February 2005. He told me that the Supreme Court proceedings had not yet been heard. He said he wished this application for injunctive relief to be further adjourned until he could prosecute the Supreme Court proceedings. He offered no evidence as to why those proceedings had not been prosecuted. I told him that I proposed to hear the matter and listed the matter for hearing today. 28 At no time has the applicant complied with my direction given on 10 February 2005. Thus, there is no evidence as to when the Supreme Court proceedings will be heard and why they have not been heard. 29 There is no evidence which would allow me to better assess his prospects of success in the proceedings in the Supreme Court than was available at the interlocutory stage. I infer that nothing has happened in the prosecution of the Supreme Court proceedings since 26 May 2004. 30 There is no evidence upon which I could find that there is any real risk that the Minister would not consider the applicant's application for a parent visa according to law and in accordance with the order of the Full Court. Particularly, there is no evidence that the Minister would not grant the applicant natural justice and consider the applicant's parent 103 visa. 31 The applicant brought this application in April last year for the purpose of obtaining an injunction to restrain the Minister from considering his parent 103 visa. 32 No doubt, he fears that whilst the convictions stand the Minister may conclude that he does not pass the character test and that, therefore, he should not be entitled to the parent visa. 33 Apparently, he has done nothing to prosecute his applications before Mullighan J and the Full Court to have those convictions quashed. 34 The false pretences convictions were entered nearly nine years ago, after he pleaded guilty. 35 The WorkCover convictions were entered more than four years ago, after a trial in the Magistrates Court. 36 In the first case, a judge of the Supreme Court refused an application to extend time for an appeal from convictions entered into seven years ago on the applicant's own pleas. In the second case, a judge of the Supreme Court dismissed his appeal three and a half years ago. 37 The applicant has not offered any evidence as to why he has not prosecuted his proceedings in the Supreme Court. He has not offered any explanation for the extraordinary delay in the Supreme Court applications. He has not suggested when they might be heard. 38 In the circumstances, the Minister was entitled to have these proceedings determined today. 39 In my opinion, there is no evidence which would support the application for permanent relief. 40 The application is dismissed. The applicant must pay the respondent's costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.