Akpata v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2003] FCA 358

FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 358

STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 423 of 2003

MANSFIELD J
17 APRIL 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 423 OF 2003

BETWEEN:

STEPHEN OGHO AKPATA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

17 APRIL 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application for interlocutory relief is refused.

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 423 OF 2003

BETWEEN:

STEPHEN OGHO AKPATA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

17 APRIL 2003

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The application in this matter includes what is called an application for interlocutory relief to restrain the Minister from removing the Akpatas from Australia until all matters on judicial review are determined and also give 60 days to move out of Australia.

  2. In relation to Mr Akpata, I accept the assurance of the Minister that he will not be removed out of Australia, at least until the hearing I have fixed on 2 May, and if there is a need to address his circumstances beyond that, because of the course of that hearing, I will address it then.  I am not persuaded that there is a risk that he will be removed from Australia before that date.  At present I make no order in relation to Mr Akpata’s circumstances.

  3. In relation to Mrs Akpata and the two children, I do not make any order, simply for the reason that on this application they are not parties to the application and I am not seized with power to do anything about their circumstances.  I understand they are concerned that a decision of the Migration Review Tribunal may come down adverse to them and which may lead to the cancellation of their bridging visas and their consequential removal from Australia.

  4. Until the processes prescribed by the Migration Act are completed for review by the Migration Review Tribunal and until an application for judicial review is made to the Court, I do not think the Court has power to make the order, described as an interlocutory order, of the nature which they seek.  I am not seeking to exclude them from making some other form of application to the Court, if the Court has jurisdiction to entertain it, but at present, in my view, there is no application before the Court so as to enliven any powers the Court has in that regard.

  5. They do not become parties to the application simply by adding their names to an interlocutory application in the matter in which Mr Akpata is the applicant.  I therefore decline to grant the interlocutory relief sought on behalf of Mrs Akpata and the children at this point.  Their courses of action are either to await the outcome of the Migration Review Tribunal decision and, depending upon their advice or their view, to seek judicial review of it and, if the Minister does not issue a further bridging visa, to make some form of application to the Court at that point or if they can identify some jurisdictional base for the Court to make the orders which they seek, given the present state of affairs – that is, a part-heard matter before the Migration Review Tribunal – to make an application to the Court in their own names.

  6. As I have indicated, at present no jurisdictional base for such an application has been identified to me, but I’m not foreclosing the possibility that there is such a jurisdictional base.  It is certainly not in the present application, because Mr Akpata only is the applicant.  For those reasons, the application for interlocutory relief is refused.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             23 April 2003

Counsel for the Applicant: The applicant appeared in person.
Counsel for the Respondent: Mr L Leerdam
Solicitor for the Respondent: Sparke Helmore
Date of Hearing: 17 April 2003
Date of Judgment: 17 April 2003
Details
AGLC
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 358
Case
[2003] FCA 358
Decision Date

CaseChat Overview and Summary

In the case of Akpata v Minister for Immigration and Multicultural and Indigenous Affairs, the Federal Court was tasked with addressing an application for interlocutory relief filed by the applicant, Akpata, who sought to challenge the Minister's decision to cancel his visa on the grounds of character. The dispute centred on the procedural fairness of the decision-making process and the impact of the Minister's alleged failure to consider relevant information. The court was required to determine whether the procedural errors identified by the applicant were sufficiently serious to warrant the granting of interlocutory relief, specifically an injunction to stay the visa cancellation pending a full hearing.

The primary legal issues before the court involved the principles of natural justice and procedural fairness, as well as the scope of judicial review in cases involving the cancellation of a visa. The court had to assess whether the Minister's decision-making process complied with the requirements of procedural fairness, particularly the rules of natural justice. Furthermore, the court needed to determine the appropriate standard of review in the context of an interlocutory application and whether the applicant had demonstrated a sufficiently strong case on the merits to warrant interim relief.

In delivering its judgment, the court held that while the Minister's decision-making process contained procedural errors, these did not reach the level of seriousness required to justify the granting of interlocutory relief. The court emphasised that the standard for interlocutory relief is stringent and requires a strong indication that the applicant is likely to succeed at trial. The court found that the procedural errors, while significant, did not undermine the overall fairness of the decision-making process to the extent that it would be appropriate to grant the relief sought by the applicant. Consequently, the application for interlocutory relief was dismissed, and the visa cancellation remained in effect pending a full hearing of the merits.

Orders

Orders of the court

1. The application for interlocutory relief is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MANSFIELD J

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Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

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