Akpata v Minister for Immigration and Citizenship
[2012] FCA 806
•3 August 2012
FEDERAL COURT OF AUSTRALIA
Akpata v Minister for Immigration and Citizenship [2012] FCA 806
Citation: Akpata v Minister for Immigration and Citizenship [2012] FCA 806 Parties: STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and SECRETARY, DEPARTMENT FOR IMMIGRATION AND CITIZENSHIP and COMMONWEALTH OF AUSTRALIA File number: NSD 2354 of 2011 Judge: JACOBSON J Date of judgment: 3 August 2012 Catchwords: PRACTICE AND PROCEDURE – summary dismissal – scope of s 31A Federal Court Act 1976 and r 26.01 of the Federal Court Rules 2011 – whether there is no reasonable cause of action if there is a clearly applicable limitation period
LIMITATION OF ACTIONS – negligence – psychiatric injury – latent injury – whether limitation period has expired – whether limitation period can be extended
MIGRATION – whether detention authorised – whether person was an unlawful non-citizen
Legislation: Federal Court Act 1976 (Cth), s 31A
Federal Court Rules 2011, r 26.01
Judiciary Act 1903 (Cth), s 39B
Limitation of Actions Act 1936 (SA), ss 35, 36, 48
Migration Act 1958 (Cth), ss 5, 13, 14, 31, 68, 73, 82, 189, 441C, 501
Migration Regulations 1994 (Cth), Schedule 2Cases cited: A16/2004 [2005] HCA Trans 575 (9 August 2005)
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 389
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2005] FCA 1147
Cartledge v E. Jopling & Sons [1963] AC 758
Commissioner of Railways v Stewart (1936) 56 CLR 520 at 527
Commonwealth v Dinnison (1995) 56 FCR 389
Estate of the Late Sir Donald Bradman v Allens Arthur Robinson [2010] SASC 71
Hillebrand v Council of the City of Penrith [2000] NSWSC 1058
Magman International v Westpac Banking Corporation (1991) 32 FCR 1
Pirelli General Cable Works v Oscar Faber & Partners Ltd [1983] 2 AC 1
Politarhis v Westpac Banking Corporation [2008] SASC 296
Ruddock v Taylor (2005) 222 CLR 612
SBKC v Minister for Immigration and Citizenship & Ors [2011] FCA 533
SBKC v Minister for Immigration and Citizenship & Ors [2012] HCATrans 89 (11 April 2012)
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 Tame v New South Wales (2002) 211 CLR 317 at [44]
Wardley Australia Ltd v Western Aust (1992) 175 CLR 514
Williams v Reid [2010] SASC 264Date of hearing: 18 April 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 125 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: D Watson of Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION
NSD 2354 of 2011
BETWEEN: STEPHEN OGHO AKPATA
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentSECRETARY, DEPARTMENT FOR IMMIGRATION AND CITIZENSHIP
Second RespondentCOMMONWEALTH OF AUSTRALIA
Third Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
3 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the respondents’ costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION
NSD 2354 of 2011
BETWEEN: STEPHEN OGHO AKPATA
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentSECRETARY, DEPARTMENT FOR IMMIGRATION AND CITIZENSHIP
Second RespondentCOMMONWEALTH OF AUSTRALIA
Third Respondent
JUDGE:
JACOBSON J
DATE:
3 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Akpata, makes a claim for compensation of $5 million against the Minister arising from his detention in the Baxter Immigration Detention Centre during the period from 13 June 2002 to 25 March 2004. He was released on that date when a Full Court of this Court handed down judgment quashing a decision made by the then Minister in June 2002 to refuse Mr Akpata’s application for a parent visa on the ground that he did not pass the character test stated in s 501 of the Migration Act 1958 (Cth) (the Act): see Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (Akpata v MIMIA).
Mr Akpata’s claim for compensation for that period of detention is put on two bases. First, he claims his detention was unlawful because the decision of the Full Court is said to show that the Minister had no authority to detain him. The second basis is a claim for damages for the psychological injuries he claims to have suffered by reason of the Minister’s breach of duty of care owed to him while he was in immigration detention.
Mr Akpata makes a second claim for compensation of $5,000 per day arising from a period in immigration detention in the Villawood Detention Centre, which commenced on 2 December 2011. He was placed in immigration detention on that date following completion of a five year prison term for a criminal offence.
The claim for Mr Akpata’s detention in Villawood is brought under s 39B(1) of the Judiciary Act 1903 (Cth). The basis of the claim is said to be that Mr Akpata’s detention is not authorised under s 189 of the Act because he claims that he is not an unlawful non-citizen.
Both of Mr Akpata’s claims are made in his Originating Application filed on 23 December 2011.
On 8 March 2012 the Minister filed an interlocutory application seeking summary dismissal of Mr Akpata’s proceeding. The Minister’s application is made under s 31A of the Federal Court Act 1976 (Cth) on the ground that Mr Akpata has no reasonable prospect of prosecuting the proceeding. The Minister also relies upon r 26.01 of the Federal Court Rules 2011, in particular r 26.01(1)(c) and (d), on the ground that Mr Akpata’s proceeding fails to disclose a reasonable cause of action and is otherwise an abuse of the processes of the Court.
The effect of the grounds of the Minister’s application for dismissal of the proceeding is to raise three questions for determination.
The first question goes to the foundation of Mr Akpata’s claim that his detention in Baxter was unauthorised merely because of the subsequent decision of the Full Court quashing the Minister’s decision. The Minister relies upon High Court authority for the proposition that a subsequent decision in favour of Mr Akpata does not affect the validity of the matters that resulted in his detention: see Ruddock v Taylor (2005) 222 CLR 612 at [40] and [232].
The second question raises a claim by the Minister that Mr Akpata’s action in respect of his detention at Baxter is barred by the expiration of the limitation periods stated in ss 35 and 36 of the Limitation of Actions Act 1936 (SA) (the Limitation Act).
Mr Akpata seeks to meet the Limitation Act point by relying upon the power under s 48 of the Limitation Act to extend the time limit for the commencement of the proceeding. However, the Minister relies upon s 48(3)(b)(i), the effect of which is that there is no power to extend the time unless the action was instituted within 12 months after the “facts material” to the case were ascertained by the plaintiff. The Minister contends that this subsection precludes the exercise of the power to extend time in the present case.
The third question is whether, at the time when he was placed in immigration detention in Villawood on 2 December 2011, Mr Akpata was an unlawful non-citizen. This question turns on whether he held a bridging visa on that date.
The second and third questions involve detailed factual enquiries which are often a barrier to the making of an order for summary dismissal, particularly one which is based upon the expiration of a limitation period.
However, here it seems to me that the factual matters set out in the affidavits filed by Mr Akpata and the Minister which were relied upon in the present application are sufficiently clear to enable me to dispose of it on a summary basis: see Wardley Australia Ltd v Western Aust (1992) 175 CLR 514 at 533; Magman International v Westpac Banking Corporation (1991) 32 FCR 1 at 22; Hillebrand v Council of the City of Penrith [2000] NSWSC 1058 at [27].
In order to consider the questions set out above it is necessary to record the factual background, in particular the factual matters that bear upon Mr Akpata’s immigration status and the time at which he ascertained the material facts upon which he relies to support his claim for breach of duty.
These matters are best dealt with by a chronological account of the relevant factual material which was in evidence before me. Some of it is drawn from the judgment of Lander J who delivered the principal judgment in Akpata v MIMIA. Further relevant factual matters are to be drawn from a subsequent decision of Lander J in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2005] FCA 1147 (Akpata v MIMIA (No 2)).
The Period from 1994 to June 2002
Mr Akpata is a citizen of Nigeria. He entered Australia on a student visa on 10 February 1994 with his wife and two children. He was granted a further student visa on 17 November 1994 but it ceased on 15 March 1996. In the meantime, on 22 December 1995 Mr Akpata applied for a protection visa. On the same day he was granted a bridging visa which is described as bridging visa A. The visa was granted in connection with his protection visa application.
Mr Akpata’s protection visa application was refused by a delegate of the Minister on 7 November 1996. The Refugee Review Tribunal (“the RRT”) published its decision affirming the delegate’s decision on 3 April 1998 but a judge of this Court subsequently allowed an application for review and the matter was remitted to the RRT: see Akpata v MIMIA (No 2) per Lander J at [8].
On 18 May 1999 a second, differently constituted, RRT affirmed the delegate’s decision. Further steps were then taken in relation to the protection visa application which I will refer to later.
While still pursuing his protection visa application, Mr Akpata also made an application for a parent visa described as “103 Parent Visa”. It is clear from the material before me that this application was made during a short overseas trip in July 1999.
What then took place in relation to Mr Akpata’s bridging visa is an important factual step in the present proceeding. The relevant facts were discussed and analysed by Lander J in Akpata v MIMIA (No 2) at [9]ff.
Lander J considered that bridging visa A, granted to Mr Akpata on 22 December 1995, ceased on 8 May 1998 by operation of law as a result of Mr Akpata’s unsuccessful application in the RRT which was the subject of the decision dated 3 April 1998. However, Lander J went on to say that on 7 June 1999 Mr Akpata commenced a second judicial review proceeding in the Federal Court in relation to the second RRT decision given on 18 May 1999.
His Honour then observed that on 5 July 1999 Mr Akpata was granted another bridging visa A in relation to the second judicial review proceeding but that bridging visa was replaced on the same day because bridging visa A did not permit Mr Akpata to travel overseas. Accordingly, since Mr Akpata was planning to travel outside Australia, he applied for and was granted bridging visa B on 5 July 1999.
The factual narrative set out by Lander J in Akpata v MIMIA (No 2) in relation to the grant of bridging visa B is borne out by the evidence of Mr O’Shannessy in the present matter. Mr O’Shannessy annexes to his affidavit of 7 March 2012, copies of the applications for bridging visa A and bridging visa B dated 5 July 1999.
Mr Akpata left Australia on bridging visa B on 27 July 1999 and returned on 30 July 1999. While he was in Fiji he lodged a parent visa application on 27 July 1999.
The question of whether when Mr Akpata returned to Australia on 30 July 1999 the terms of bridging visa B were spent, so that thereafter he remained here on bridging visa A, was not in issue before Lander J when he sat in the Full Court. However, his Honour considered the question of the status of Mr Akpata’s bridging visas in 1999 in Akpata v MIMIA (No 2). I will refer to that later.
Returning then to the application for a protection visa, on 22 November 1999 Mr Akpata sought judicial review of the decision of the RRT given in May of that year. The matter was remitted to the RRT by consent on 30 November 1999 but on 19 May 2000 a third RRT affirmed the delegate’s decision to refuse to grant Mr Akpata a protection visa.
On 3 July 2000 Mr Akpata made an application for judicial review of the third decision of the RRT but the application was refused on 11 April 2001. An appeal to a Full Court was dismissed on 21 December 2001. On 3 January 2002 Mr Akpata applied for special leave to appeal in the High Court. That application had not been dealt with as at the date when the Minister refused Mr Akpata’s application for a parent visa. Special leave to appeal from the order of the Full Court dismissing Mr Akpata’s application for review of the decision of the RRT was refused by the High Court on 11 April 2003. In Akpata v MIMIA (No 2) at [18] Lander J stated that no application was made for a bridging visa in connection with Mr Akpata’s application for judicial review of the third decision of the RRT. His Honour stated at [19] that Mr Akpata held no visa of any kind between 28 December 1999 and 11 April 2003 when the High Court refused special leave.
On 11 June 2002 the Minister decided to refuse Mr Akpata’s application for a parent visa. The Minister made that decision on “character grounds” in the exercise of the Minister’s discretion because he was not satisfied that Mr Akpata satisfied the character test stated in s 501 of the Act. The reason Mr Akpata failed the character test was that he had two convictions for criminal offences each of which resulted in sentences of terms of imprisonment of 12 months. The first was for false pretences in 1996. The second was for dishonesty in 2001. They are referred to in [79] and [80] of Lander J’s judgment in Akpata v MIMIA.
The Minister’s decision of 11 June 2002 was considered by an officer of the Department to enliven the provisions of s 189 of the Act. Accordingly, Mr Akpata was placed in immigration detention in Baxter Detention Centre in South Australia on 13 June 2002. It is that period of detention which ended on 25 March 2004 that led Mr Akpata to make his claim for damages of $5 million against the Minister.
The Period of Detention from 13 June 2002 to 25 March 2004
Mr Akpata has set out his evidence of what took place while he was in detention and its impact on him in his affidavit of 22 December 2011 (filed on 23 December 2011) and in a supplementary affidavit filed on 2 April 2012. Further details are contained in a document signed by Mr Akpata on 2 April 2012 and filed on that date. The document is headed “Defence” but the sub-heading immediately above paragraph 1 is “Statement of Claim”.
It is not necessary for present purposes to set out the full details of Mr Akpata’s evidence. It is sufficient to say that he claims to have witnessed and experienced traumatic events while he was in detention. He also claims that his detention led to his own mental disintegration and the disintegration and collapse of his family.
Departmental records to which Mr O’Shannessy refers indicate that Mr Akpata’s wife and son departed from Australia on 18 June 2003 but his daughter remained in Australia.
Mr Akpata’s application for special leave to appeal to the High Court against the decision of the Full Court refusing to set aside the third decision of the RRT in respect of his protection visa application was refused on 11 April 2003.
On 1 May 2003, Finn J dismissed Mr Akpata’s application for review of the Minister’s decision to refuse to grant Mr Akpata a parent visa: Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 389.
As I said at [1] above, a Full Court allowed an appeal from the primary judge on 25 March 2004 and quashed the decision of the Minister refusing the grant of a parent visa.
The Full Court also ordered that Mr Akpata’s application for a parent visa be reconsidered by the Minister in accordance with the reasons of the Full Court (see Order 3). Those reasons indicate that the ground on which the Minister’s decision was quashed was a denial of procedural fairness upon the basis that the Minister did not give Mr Akpata an opportunity to consider certain material that was relevant to his character: see Akpata v MIMIA at [169] – [172].
Mr Akpata was released from detention at Baxter on 25 March 2004, that is to say, on the date of the Full Court’s order.
I will address later the question of what form of visa Mr Akpata held when he was released from detention on 25 March 2004.
The period following release from detention in March 2004 to 30 May 2007
Mr Akpata’s evidence is that the day following his release from detention, that is to say 26 March 2004, he attended at the Adelaide Office of the Department and shortly thereafter was told that his Bridging Visa A and B had been changed to a Bridging Visa E which did not permit him to work in Australia.
Mr O’Shannessy does not deal with that conversation in his affidavit of 7 March 2012 but he says that the issue of whether Mr Akpata held bridging visa A or B at the time of his release from detention was considered by Lander J in Akpata v MIMIA (No 2).
His Honour there stated at [20] that on 30 March 2004 Mr Akpata commenced proceedings in the High Court seeking to review the decision of the delegate which was made on 7 November 1996 to refuse the application for a protection visa. It seems clear from what Lander J said at [21] that on 30 March 2004 Mr Akpata was granted a bridging visa E in connection with the new proceeding in the High Court.
His Honour went on to observe at [21] – [23] that Mr Akpata held bridging visa E as at 19 August 2005 but that he did not hold bridging visa A. However, the transcript of Mr Akpata’s proceeding in the High Court dated 9 August 2005 reveals that Hayne J dismissed the proceeding on that date: see [2005] HCA Trans 575 (9 August 2005), 580. For reasons stated later, this had the effect that bridging visa E issued on 30 March 2004 ceased in August 2005.
In July 2005 Mr Akpata’s mental condition reached a critical stage. On 11 July 2005 he was detained under the Mental Health Act 1993 (SA) and was admitted to Cramond Clinic, the mental health crisis intervention service of the Queen Elizabeth Hospital, for treatment of depression and suicidal tendencies which were exacerbated by alcohol intoxication.
Mr Akpata’s admission to the Clinic followed upon his acts of unlawful sexual intercourse with his 11 year old daughter on 6, 7 and 8 July 2005. He was charged with three counts of unlawful sexual intercourse to which he subsequently pleaded guilty.
Mr Akpata remained in the Cramond Clinic from 11 July 2005 to 22 July 2005. His condition was diagnosed at that time as an “Adjustment Disorder” with a depressed and anxious mood. Mr Michael Harrison, a clinical psychologist to whom he was later referred, has said in a report issued in 2009 that Mr Akpata’s mental health problems were thought to have resulted from a crisis situation in his life and from an underlying personality disorder.
The psychological therapy sessions which Mr Akpata undertook with Mr Harrison commenced on 2 September 2005 and continued for some time thereafter.
The date on which Mr Akpata was charged with the offences committed against his daughter is not set out in the evidence. However the affidavit evidence, including supporting documentary evidence, makes it clear that Mr Akpata was granted a criminal justice stay visa on 8 June 2006 and that he was placed in criminal custody on 14 June 2006.
On 30 May 2007 Mr Akpata pleaded guilty to the three counts of unlawful sexual intercourse described above. The remarks on sentencing made by Judge Herriman on that date formed part of the evidence before me.
Judge Herriman referred inter alia to a report of a psychologist, Mr Balfour, who considered that the tragedies and hardship of Mr Akpata’s earlier life in Nigeria and in Australia led to him suffering serious psychiatric injuries, to alcohol abuse and other social problems. Judge Herriman also said:
“Mr Balfour considers that the combined effect of all this, coupled with your two-year detention in Baxter, has been significant in terms of explaining your offending conduct.”
Judge Herriman sentenced Mr Akpata to five years imprisonment commencing on 14 June 2006 when he went into custody.
The period from 15 January 2009 to 18 April 2012
On 15 January 2009, while he was still in prison in South Australia, Mr Akpata made a second application for a protection visa. On the same date, he made an application for the grant of a bridging visa.
There was some delay in the grant of Mr Akpata’s new bridging visa but Departmental records show that he was issued with a bridging visa E on 23 June 2009. The Department’s records also show that this bridging visa ceased on 17 December 2009, a date which appears to reflect the operation of a clause of the Migration Regulations 2004 (Cth) (the Regulations) to which I will refer later.
The application for a protection visa, which Mr Akpata had sought on 15 January 2009, was refused by a delegate of the Minister. The RRT affirmed the delegate’s decision on 10 November 2009. Mr Akpata then sought judicial review of the RRT’s decision on 20 November 2009.
It was during this period that Mr Akpata acknowledges that he discovered that his injuries were caused by what he claims to be a breach of the duty owed to him while he was in detention in Baxter. Mr Akpata’s evidence is that he first became aware of the link between July and August 2009. I will refer to his evidence on this issue in more detail when I deal with the limitation question.
Returning then to the fate of Mr Akpata’s second protection visa application, his application for judicial review of the RRT’s decision was dismissed in the Federal Magistrates Court on 15 December 2010. His appeal from that decision to the Federal Court was dismissed by Marshall J on 19 May 2011: see SBKC v MIAC [2011] FCA 533.
On 19 October 2011 Mr Akpata filed an application in the High Court’s original jurisdiction for the issue of constitutional writs seeking to quash the decision of the RRT dated 10 November 2009.
Mr Akpata’s criminal justice stay visa was cancelled on 30 November 2011.
On 2 December 2011 Mr Akpata completed his most recent term of imprisonment. He was transferred from Yatala Prison in South Australia to Villawood Immigration Centre on that date.
On 11 April 2012 Mr Akpata’s application for special leave to the High Court was dismissed by Bell J: see [2012] HCA Trans 089 (11 April 2012), 1175 to 1285.
Question 1 – was the detention unauthorised?
Section 189 of the Act states that if an officer knows or reasonably suspects that a person in the Migration zone is an unlawful non-citizen, the officer must detain the person. The definition of officer in s 5 of the Act includes an officer of the Department.
The effect of the majority decision in Ruddock v Taylor at [40] is that, as Gleeson CJ, Gummow, Hayne and Heydon JJ said, the question of what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen is to be judged against what was known or capable of being known at the time when the person was detained; what were reasonable grounds for effecting the person’s detention do not retrospectively cease to be reasonable upon the court making later orders that the detention was unlawful: see also [232] per Callinan J.
It follows that Mr Akpata’s contention that his detention in Baxter was unlawful by reason of the decision of the Full Court dated 25 March 2004 cannot be maintained.
Question 2 – application of Limitation Act
This question turns upon the application of the relevant provisions of the Limitation Act to Mr Akpata’s proceeding. The relevant provisions are the limitation periods stated in ss 35 and 36 and the power to extend the limitation period contained in s 48 of the Limitation Act.
It is well established that the power to order summary dismissal of a proceeding upon the ground that it is barred by a limitation period should be exercised only in a very clear case: see Wardley at 533; Magman at 22. The case must be one where there are no disputed issues of fact and the conclusion that the claim is statute barred must be very clear: Hillebrand at [27].
It seems to me that the facts in the present case are sufficiently clear. The facts on which the claim is said to be founded are set out in Mr Akpata’s affidavits and, for the most part, are repeated in his interlocutory process.
The claim which he makes in his originating process filed on 23 December 2011 is for “the impact and the damage” that his detention in Baxter had on him and the damage it has done to “my life and will continue to have on my life for ever [sic] and the lives of my wife and children”.
The other claim Mr Akpata makes in his originating process is not the subject of a Limitation Act defence but is dealt with under Question 3.
Further details of the claim for damages arising from Mr Akpata’s detention at Baxter are set out in his “Defence” filed on 2 April 2012. The gravamen of the claim is for “Mental Personal Injury”, that is to say, for psychiatric injury arising from what is said to be the negligence of the Minister.
Mr Akpata’s claim is therefore to be characterised as an action for damages in respect of personal injuries which was required to be commenced within three years after the cause of action accrued: see Limitation Act s 36(1) and the definition of “personal injuries” in s 36(2); see also Handford, D, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed Thomson Lawbook Co, 2006) at [14.220].
It seems clear enough that damage is a necessary element of such a cause of action, so that the cause of action accrues when the damage is suffered: Commissioner of Railways v Stewart (1936) 56 CLR 520 at 527 and 536; see also Cartledge v E. Jopling & Sons [1963] AC 758; Pirelli General Cable Works v Oscar Faber & Partners Ltd [1983] 2 AC 1.
Where, as in the present case, the claim is for psychiatric injury, the issue is whether the damage is suffered at the time of the traumatic event, or subsequently, when the plaintiff has suffered a reaction which is manifested in a recognisable psychiatric illness. The authorities establish that damages are recoverable in negligence only for a recognisable psychiatric illness and not for emotional distress: see Tame v New South Wales (2002) 211 CLR 317 at [44]; see also Mullany and Handford’s Tort Liability for Psychiatric Damage at [14.240].
If follows that in the present application I should proceed on the basis that the cause of action alleged by Mr Akpata rests upon damage that may have been suffered after the period of his detention in Baxter which ceased on 25 March 2004.
Nevertheless, the facts upon which Mr Akpata relies make it plain that the latest date on which he could be said to have suffered a recognisable psychiatric illness was 11 July 2005 when he was admitted to the Carmond Clinic at the Queen Elizabeth Hospital and was diagnosed with depression.
Accordingly the present action was commenced well after the expiration of the three year limitation period stated in s 36(1) which expired in July 2008.
Section 36(1a) of the Limitation Act, which was inserted with effect from 8 February 2006, makes specific provision for situations which have arisen in authorities such as Cartledge v Jopling where a disease exists but its symptoms are unknown until a later point of time.
It is to meet this situation that s 36(1a) provides that in the case of a personal injury that remains latent for some time after the cause, the period of three years stated in s 36(1) begins to run when the injury first comes to the person’s knowledge.
The word “latent” in s 36(1a) means hidden or concealed, present but not visible or apparent. It describes a condition suffered by a person about which the person has no knowledge: Politarhis v Westpac Banking Corporation [2008] SASC 296 at [234].
Section 36(1a) is procedural in nature and applies to the present case: Maxwell v Murphy (1957) 96 CLR 261 at 286ff per Fullager J. In some cases that subsection will have the effect of substantially delaying the commencement of the limitation period. However, in the present case it does not. This is because it is clear from Mr Akpata’s own evidence that the psychiatric injury first came to his knowledge in July 2005 when he was admitted to the Cramond Clinic.
Mr Akpata states in plain terms in paragraph 57 of his affidavit filed on 23 December 2011 that he was admitted on 11 July 2005 and treated for depression. He goes on to say at paragraphs 58 to 61 that he was diagnosed with “Adjustment Disorder” and depression, that upon his discharge from the Clinic (on 22 July 2005) he was referred to Mr Michael Harrison, the Regional Clinical Psychologist at the Queen Elizabeth Hospital, who concluded that Mr Akpata was suffering from post-traumatic stress disorder with depressed mood and significant risk of suicide.
A later report of Mr Harrison, dated 21 May 2009, was in evidence as an annexure to the affidavit of Mr O’Shannessy filed 8 March 2012. Mr Harrison’s report refers to Mr Akpata’s psychological therapy sessions which commenced on 2 September 2005 and came to an end about April 2006 when Mr Akpata was remanded in custody as a result of the criminal charges against him.
Mr Harrison’s report makes it sufficiently plain in my view that Mr Akpata knew of his depression and other psychological conditions during the period of his therapy sessions in the period from 2 September 2005 to April 2006.
It is impossible, in my opinion, to read Mr Akpata’s evidence, as confirmed by Mr Harrison’s report, on any basis other than that the psychological injury of which he now complains first came to his knowledge when he was admitted to the Cramond Clinic in July 2005. On the most favourable view to him he knew of the injury when he undertook the therapy sessions with Mr Harrison between 2 September 2005 and April 2006.
As White J said in Politarhis at [234], the plaintiff knew of his psychological conditions when he sought and received treatment and counselling for those conditions. The same conclusion is inevitable in the present case.
Further authority which supports this conclusion may be found in the observations of Gummow and Cooper JJ in Commonwealth v Dinnison (1995) 56 FCR 389 at 402. That case was concerned with an application for an extension of the limitation period under the Limitation Act 1969 (NSW). One of the criteria for an extension was that the plaintiff was “unaware of the nature or extent of personal injury suffered”.
Gummow and Cooper JJ said at 402 that what was essential to establish knowledge was the perception of the plaintiff of the distressing phenomenon. They went on to say that one has to ask whether the plaintiff did not know that personal injury of that nature had been suffered, or was unaware of the nature or extent of the injury.
Although the statutory provision to which their Honours referred in Dinnison was in different terms from s 36(1a) of the Limitation Act, it seems to me that their observations about the necessity for the plaintiff to perceive the existence of the “distressing phenomenon” is equally applicable to the question of when the injury “first comes to the person’s knowledge”. This is because their Honours observations were directed at the requirement in the NSW legislation that the plaintiff “did not know that personal injury has been suffered”.
Here, as I have said, Mr Akpata’s own evidence and the confirmation of it in Mr Harrison’s report makes it plain that Mr Akpata fully perceived the existence of a recognised psychiatric illness during the period of his admission to the Cramond Clinic. At very latest, and on the most favourable view to Mr Akpata the illness first came to his knowledge when he was treated by Mr Harrison. It would follow that the condition first came to his knowledge in the period from 2 September 2005 to April 2006. But even on that view, the limitation period of three years ran from no later than April 2006 and expired more than two years before the commencement of the present proceeding.
Section 35 of the Limitation Act prescribes a longer limitation period for an action founded in tort, namely six years from the time when the cause of action accrued. I do not consider that Mr Akpata’s claim is governed by that section because it seems to me that the effect of ss 35 and 36 is that actions in tort, including negligence, fall under s 36 where they constitute a claim for damages consisting of, or including, damages in respect of personal injuries.
It follows that Mr Akpata’s claim falls under s 36 of the Limitation Act which is governed by the three year limitation period discussed above.
But even if Mr Akpata’s claim were to be characterised as an action founded on tort it was commenced after the period of six years “next after the cause of action accrued”. This is because the cause of action accrued in July 2005 when Mr Akpata was admitted to the Clinic and was diagnosed with depression. It would follow that the six year period expired in July 2011 some five months before the present proceeding was commenced. Section 35 contains no qualification in relation to latent conditions equivalent to those which are the subject of s 36(1a). It is therefore clear that the limitation period runs from July 2005 rather than April 2006.
The question which then arises is whether the power to extend the limitation period under s 48(1) is enlivened. The power to extend time is broad in nature, its purpose being to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit. However the width of the power is limited by s 48(3) which denies to a court the power to extend time unless it is satisfied of the circumstances set out in either para (i) or (ii) of s 48(3)(b): see Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635; see also Estate of the Late Sir Donald Bradman v Allens Arthur Robinson [2010] SASC 71 at [23]; Williams v Reid [2010] SASC 264 at [22].
Here, the relevant subsection is (i), that is to say, s 48(3)(b)(i). That subsection has been explained by the High Court and by the Full Court of the Supreme Court of South Australia. The court is not empowered to extend a limitation period unless it is satisfied that facts material to the plaintiff’s case were not ascertained by the plaintiff until a point of time stipulated in the subsection. The point of time is either within 12 months before the expiration of the limitation period, or a point of time occurring after the expiration of the limitation period. But, importantly, in either event, the action must be instituted within 12 months after the plaintiff ascertains those facts: Estate of the Late Sir Donald Bradman at [23]; see also Williams v Reid at [22].
The “facts material to the plaintiff’s case” are those which are both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and are of sufficient importance to be likely to have a bearing on the case. The facts which are material are those that are relevant to the case at trial, not to the plaintiff’s decision to sue: Sola Optical at 636; see also Williams v Reid at [26] – [29].
In the present case, Mr Akpata says at [58] of his affidavit filed on 23 December 2011 that he was diagnosed with depression and other conditions when he was admitted to the Cramond Clinic in July 2005
“and that I am suffering an incapacitating mental health problem due to the effect the trauma that detention has had on me.”
This appears to me to suggest that Mr Akpata claims to have ascertained the causal link between his psychiatric illness and his detention in Baxter in July 2005.
But even if that is not a correct interpretation of his evidence, the question is put beyond doubt, for present purposes, by what Mr Akpata says in paragraph 15 of his affidavit filed on 2 April 2012. There, Mr Akpata says that he first knew and discovered that his injuries were caused by the negligence and breach of duty of the Commonwealth between late July and early August 2009. He makes statements to the same effect in paragraphs 7 and 8 of his interlocutory application filed on 2 April 2012.
It follows that Mr Akpata’s action was not instituted within 12 months after he ascertained the material facts and the court is not empowered to extend the limitation period applicable to Mr Akpata’s cause of action.
Mr Akpata states in paragraph 9 of his interlocutory application filed on 2 April 2012 that he “only first discovered” that his injuries were significant enough to justify commencing legal proceedings between August and November 2011 when he watched a television documentary. However, this is not a material fact for the purpose of s 48(3)(b)(i) because in Sola Optical at 636 the High Court held that there is no warrant for writing into s 48(3)(b)(i) a qualification that, to attract the operation of that subsection, there must be some interaction between the material fact and the plaintiff’s decision to sue.
It follows, in my opinion, that any claim for personal injuries arising from Mr Akpata’s detention in Baxter which was the subject of Mr Akpata’s process filed on 23 December 2011 was commenced after the expiration of the limitation period and the court has no power to extend that period.
Question 3 – was Mr Akpata an unlawful non-citizen?
This question turns on whether Mr Akpata held a visa that was in effect when he was placed in immigration detention at Villawood on 2 December 2011. Mr Akpata contends that he held a current bridging visa at that time. However, if he did not, he was an unlawful non-citizen and his detention was authorised by law: see ss 13, 14 and 189 of the Act.
No issue was raised by Mr Akpata that he held any other visa apart from a bridging visa at the time he was placed in detention on 2 December 2011. In any event the factual narrative set out above makes it clear that Mr Akpata did not hold a substantive visa at that time. The student visa on which he entered Australia had long since ceased, his application for a parent visa had been refused, and his two applications for a protection visa had also been refused. Moreover, the criminal justice visa under which he remained in Australia from June 2006 was cancelled on 30 November 2011, a few days before he was placed in immigration detention.
The only bases upon which Mr Akpata contended that he held a current bridging visa on 2 December 2011 were that he continued to hold bridging visa A which was granted to him on 22 December 1995 when he applied for his first protection visa, or alternatively that he continued to hold bridging visa A issued on 5 July 1999. One further alternative was raised namely that he continued to hold bridging visa E issued on 23 June 2009 in connection with his second protection visa application. He held an earlier bridging visa E, issued on 30 March 2004 but, for reasons explained below, that visa ceased to have effect no later than 9 August 2005.
I am satisfied that the effect of the relevant provisions of the Act and the Regulations is that each of the bridging visas which had been issued to Mr Akpata had ceased to be in effect well before he was placed in detention at Villawood.
The bridging visas granted to Mr Akpata in 1995, 1999, 2004 and 2009 were issued under Part 2, Division 3 of the Act. Bridging visas are one of the prescribed classes of visas referred to in s 31 of the Act and the Regulations.
Under s 68 of the Act a visa has effect when it is granted but it can only be in effect for the period of the visa. There is provision in s 68(4) for a bridging visa that has ceased to be in effect to be reactivated as a “reactivated bridging visa”. I will deal below with the question of whether this provision was enlivened.
Section 73 deals with the grant of bridging visas. If the Minister is satisfied that an eligible non-citizen satisfies the stipulated criteria, the Minister may grant a bridging visa permitting the person to remain in, travel to, or to enter and remain in Australia:
·during a specified period; or
·until a specified event occurs.
Section 82 sets out the provisions specifying when a visa ceases to have effect. Section 82(3) provides that a bridging visa ceases to be in effect if another visa (other than certain specified types which are not relevant to the present case) comes into effect. This provision may, in certain circumstances, give rise to a reactivated bridging visa under s 68(4), although for reasons stated later, it does not do so in the present case.
Section 82(7) provides that a visa to remain in Australia during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
Importantly, for the purposes of subsection (7), a particular date includes the date the holder ceases to have a status specified in the Regulations. I will refer below to the relevant regulations: see s 82(10)(b) of the Act.
A new subsection, s 82(7A) was introduced in March 2009. It provides that a bridging visa permitting the holder to remain in, or to travel to, enter and remain in Australia until a specified event occurs, ceases to be in effect the moment the event happens.
Section 82(8) provides that a visa to remain in, but not re-enter Australia, ceases to be in effect if the holder leaves Australia.
The relevant Regulations are contained in Schedule 2. That schedule sets out the provisions that apply to the grant of various subclasses of visas. Subclass 010 relates to bridging visas A, subclass 020 relates to bridging visas B and subclass 050 relates to bridging visas (General).
The Regulations specify in each subclass the period for which that bridging visa permits the visa holder to remain in Australia. In each subclass, if the substantive visa application in relation to which the bridging visa is granted is refused, and the holder applies for merits review of the refusal, the bridging visa permits the holder to remain in Australia until 28 days after notification of the decision of the review authority: see cll 010.511(b)(iii)(A); 020.511(b)(iii)(A); 050.511(b)(iii)(A).
The effect in the present case of the provisions to which I have referred above may be stated briefly.
Bridging visa A which was granted to Mr Akpata on 22 December 1995 in connection with his first protection visa application ceased to have effect 28 days after notification of the decision of the RRT affirming the delegate’s refusal to grant the protection visa: see cl 010.511(b)(iii)(A) of Schedule 2 to the Regulations.
As Lander J observed in Akpata v MIMIA (No 2), the effect of this provision, and the notification provisions in s 441C(4) of the Act was that Mr Akpata’s bridging visa A issued on 22 December 1995 ceased on 8 May 1998.
Bridging visa A which was issued on 5 July 1999 in relation to Mr Akpata’s judicial review proceeding instituted on 7 June 1999 ceased to have effect on 5 July 1999 because it was immediately replaced on that day by bridging visa B: see Akpata v MIMIA (No 2) at [16].
Bridging visa B granted to Mr Akpata on 5 July 1999 ceased by operation of law 28 days after 30 November 1999 when the judicial review proceedings were completed by the remittal of the matter to the Refugee Review Tribunal: see cl 020.512(b)(i); see also Akpata v MIMIA (No 2) at [17].
As Lander J observed in Akpata v MIMIA (No 2) at [17], from that date, ie 28 December 1999, Mr Akpata did not hold either a bridging visa A or a bridging visa B. A Full Court (Kiefel, Kenny and Graham JJ) expressed the same conclusion in Akpata v MIMIA [2006] FCAFC 19 at [17].
There is no room for the operation of s 68(4) so as to give rise to a reactivated bridging visa. That type of visa comes into effect in certain circumstances where a bridging visa has ceased to be in effect under s 82(3). Bridging visa A issued on 22 December 1995 could not be reactivated under that provision because it ceased to be in effect when Mr Akpata left Australia in July 1999.
It may be possible that bridging visa A issued on 5 July 1999 was reactivated under s 68(4) but even if it was, that bridging visa ceased to have any effect at very latest on 11 April 2003 when the High Court refused special leave in respect of Mr Akpata’s judicial review proceeding for his first protection visa application.
Bridging visa E issued to Mr Akapata on 30 March 2004 in connection with his application for a review of the delegate’s decision ceased in August 2005 when Hayne J dismissed Mr Akapata’s application for the issue of constitutional writs to quash the decision of the delegate: see ss 82(7) and 82(10(a) of the Act; cl 050.512(b)(ii).
Bridging visa E issued to Mr Akpata on 23 June 2009 in connection with his second protection visa application ceased to be in effect on 17 December 2009, 28 days after he was notified of the decision of the Refugee Review Tribunal affirming the decision of the delegate to refuse Mr Akpata’s second protection visa application: see cl 050.511(b)(iii)(A) of Schedule 2 to the Regulations.
It follows from what I have said above that Mr Akpata did not hold any visa that was in effect on 2 December 2011 when he was placed in immigration detention at Villawood. Mr Akpata’s detention was therefore authorised by s 189 of the Act.
Conclusion
In my opinion it is clear from the analysis that I have set out above that Mr Akpata’s proceeding has no reasonable prospect of success: see Spencer v Commonwealth (2010) 241 CLR 118.
Accordingly, I will order pursuant to s 31A(2) of the Federal Court Act and r 26.01 of the Federal Court Rules that the originating application filed by Mr Akapata on 23 December 2011 be dismissed with costs.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 3 August 2012
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