Akpata v Minister for Immigration and Multicultural and Indigenous Affairs

[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