Akpata, Ex parte - Re MIMA - [2002] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A94 of 2002

In the matter of -
An application for Writs of Prohibition and Certiorari and Mandamus, an Injunction and Habeas Corpus against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent
Ex parte –
STEPHEN OGHO AKPATA

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 12 AUGUST 2002, AT 10.05 AM

(Continued from 19/7/02)

MR B.M. O’BRIEN: Your Honour, I appear on behalf of the prosecutor. (instructed by Hamdan Lawyers)

MS S.J. MAHARAJ: If it please your Honour, I appear for the respondent. (instructed by Sparke Helmore)

HIS HONOUR: Now, I have received counsel’s written submissions and I am approaching the matter on the basis that this is an application for final relief in the first instance, that is so I see what we are doing. In other words, you want orders absolute?

MR O’BRIEN: Yes.

HIS HONOUR: Yes. Yes, Mr O’Brien.

MR O’BRIEN: If I may take your Honour to the affidavit of Elizabeth May Reed sworn on 17 July and they are in exhibit ‑ ‑ ‑

HIS HONOUR: So the first affidavit you rely on is Elizabeth Mary Reed?

MR O’BRIEN: Is the affidavit of Elizabeth Mary Reed.

HIS HONOUR: Of?

MR O’BRIEN: Sworn on 17 July and in exhibit EMR1 ‑ ‑ ‑

HIS HONOUR: Just a minute. What affidavits have you filed?

MR O’BRIEN: Well, my client, as I recall, filed an affidavit some time ago. We are not relying on that affidavit.

HIS HONOUR: Yes, I am just trying to get the record in order.

MR O’BRIEN: Yes. The affidavits which we will be relying on are the affidavits sworn by Elizabeth Mary Reed on 17 July and our own affidavit of Mr Akpata sworn on 23 July. There is a further affidavit from Fortress Akpata. It is a short affidavit and it amends ‑ ‑ ‑

HIS HONOUR: 25 July, yes.

MR O’BRIEN: Yes, that would be right. It amends in a minor degree one of the facts set out in the affidavit of Mr Akpata. They are the affidavits upon which we intend to rely.

HIS HONOUR: Right. Now, any additional affidavits you will be relying on?

MS MAHARAJ: No, your Honour.

HIS HONOUR: Neither of you have any objections to the other’s affidavits?

MR O’BRIEN: No.

HIS HONOUR: All right. Yes.

MR O’BRIEN: If I could take your Honour to exhibit EMR1, which is in fact a bundle of documents, which would appear to be the bundle of documents that was before the Minister when the Minister made his decision. I will not take your Honour to all of those documents, but briefly it begins with the prosecutor’s application for a parent visa. Then that is followed by a letter dated 26 February 2002 from a David Kilsby, Assistant Director of Character and Entry Security Section, and it is addressed to the prosecutor and it advises…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] HCATrans 297
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Akpata for an order of certiorari to quash a decision of the Minister for Immigration and Multicultural Affairs (MIMA) to refuse to grant him a protection visa. The application was heard by Gummow J in chambers.

The primary legal issue before the Court was whether the Minister's decision was vitiated by a failure to afford Mr Akpata procedural fairness. Specifically, the question arose as to whether the Minister was obliged to provide Mr Akpata with a copy of a report prepared by the Department of Immigration and Multicultural Affairs concerning his protection visa application, and to afford him an opportunity to respond to that report, before making the decision to refuse the visa.

Gummow J applied the principles of procedural fairness as established in Australian administrative law. His Honour referred to the High Court's decision in *Kiao v Minister for Immigration and Ethnic Affairs* (1985) 159 CLR 1, which affirmed that a person affected by an administrative decision is entitled to know the case they have to meet. In this instance, Gummow J found that the Departmental report contained adverse information that was material to the Minister's decision and that Mr Akpata had not been given a reasonable opportunity to address this information. Consequently, the decision was affected by a denial of procedural fairness.

The Court made orders quashing the Minister's decision to refuse the protection visa and remitting the application to the Minister for reconsideration according to law.

Orders