Akpata v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)

[2005] FCA 1147

FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2005] FCA 1147

CORRIGENDUM

STEPHEN OGHO AKPATA, FORTRESS AKPATA AND PRECIOUS AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 84 of 2004

LANDER J
19 AUGUST 2005 (CORRIGENDUM 29 AUGUST 2005)
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD84 OF 2004

BETWEEN:

STEPHEN OGHO AKPATA
FIRST APPLICANT

FORTRESS AKPATA
SECOND APPLICANT

PRECIOUS AKPATA
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

19 AUGUST 2005

WHERE MADE:

ADELAIDE

CORRIGENDUM

In the judgment of Justice Lander delivered 19 August 2005 please make the following amendment:

On page 5, please change the appearance for Counsel for the Respondent from ‘Ms S Maharaj with Mr M Kennedy’ to ‘Ms S Maharaj’.

I certify that the preceding is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Lander.

Associate:

Dated:            29 August 2005

FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2005] FCA 1147

MIGRATION – application for an injunction to restrain the Minister for Immigration and Multicultural and Indigenous Affairs from nullifying applicants’ bridging A visas – whether applicants held bridging A visas.

Migration Act 1958 (Cth) s 441C(4)

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145 referred to

Migration Regulations, Schedule 2 Item 010.511(b)(iii)(A) and Item 020.512(b)(i)
Federal Court Rules, O 32 r 2(1)(d)

STEPHEN OGHO AKPATA, FORTRESS AKPATA AND PRECIOUS AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 84 of 2004

LANDER J
19 AUGUST 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD84 OF 2004

BETWEEN:

STEPHEN OGHO AKPATA
FIRST APPLICANT

FORTRESS AKPATA
SECOND APPLICANT

PRECIOUS AKPATA
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

19 AUGUST 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application for an injunction be dismissed.

2.        The applicants 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	SAD84 OF 2004

BETWEEN:

STEPHEN OGHO AKPATA
FIRST APPLICANT

FORTRESS AKPATA
SECOND APPLICANT

PRECIOUS AKPATA
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	LANDER J
DATE:	19 AUGUST 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 27 April 2004 the applicants commenced these proceedings seeking an injunction against the respondent ‘from nulifying [sic] and ceasing my bridging A visas associated with our and my protection visa applications granted on the 22/12/1995 to Stephen, Fortress and Precious Akpata respectively’.

2. The applicants also sought an interlocutory order:

   ‘That the bridging A visa continue in effect and continue to be in efect [sic] and current for Stephen Ogho Akpata; Mrs Fortress Akpata and Master Precious Akpata.’

3. I have heard this matter on two separate occasions.  The applicants did not attend on either hearing.  On both occasions the respondent sought an order under O 32 r 2(1)(d) of the Federal Court Rules that I proceed with the trial generally in the applicants’ absence.  I acceded to those applications.  I explained my reasons for doing so in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145, a judgment also delivered today. Those reasons should be read with these reasons. In those reasons I also dealt with the applicants’ application to have the matter relisted for hearing. I dismissed that application.

4. At the trial of this matter, the respondent read three affidavits of William Adam Sharpe which were affirmed on 12 July 2004, 22 July 2004 and 11 October 2004.  The respondent also read the affidavit of Cassandra White sworn on 2 July 2004 and exhibit CW1 to that affidavit, which was the affidavit of Jodi Ann Bergmann sworn on 26 September 2003 and filed in this Court in S778 of 2003.  The first applicant and respondent are also the applicant and respondent in those proceedings.  Mr Sharpe is a public servant in the Department of Immigration and Multicultural and Indigenous Affairs.  He was called to give evidence and correct some aspects of his affidavit evidence.  Mr Sharpe was in Adelaide because Mr Akpata had indicated he wanted to cross-examine him.  The matter had been listed during lunch time because Ms Bergmann was then posted in Vietnam and she was to be cross-examined by Mr Akpata by video-link.  When the applicants failed to appear there was no need for her to be called.  I accept Mr Sharpe’s evidence.

5. The first and second applicants are husband and wife and the third applicant is one of their two children.

6. The first applicant, the husband, entered Australia on 10 February 1994 on a sub-class 561 student visa.  On 3 November 1994 he applied for a further student visa and on 17 November 1994 he was granted a sub-class 560 student visa.  That visa ceased on 15 March 1996.

7. However, in the meantime, on 22 December 1995 he lodged an application for a protection visa.  On the same day, he was granted a bridging visa A in connection with his application for a protection visa.  On 7 November 1996 the Minister’s delegate refused to grant the first applicant a protection visa.  On 19 November 1996 the first applicant applied to the Refugee Review Tribunal (RRT) for a review of the Minister’s delegate’s decision.  The first applicant held a bridging visa A at that time.

8. On 3 April 1998 the RRT published its decision in which it affirmed the decision of the Minister’s delegate not to grant the first applicant a protection visa.

9. The bridging visa A, which was granted on 22 December 1995, ceased on 8 May 1998 by operation of law.

10. Section 441C(4) of the Migration Act 1958 (Cth) (the Act) provides that, if the RRT gives a document to a person by despatch by pre-paid post to the person’s last address for service, the person is taken to have received the document if the document was despatched from a place in Australia to an address in Australia seven working days after the date of the document. The effect of s 441C(4) of the Act was to deem the decision of the RRT to have been received by the first applicant on 10 April 1998.

11. Where a bridging visa A is granted when an applicant seeks a protection visa or a review of that protection visa before the RRT, the visa ceases to operate 28 days after notification of the decision: Item 010.511(b)(iii)(A) in Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).

12. The effect of s 441C(4) and Item 010.511(b)(iii)(A) in Schedule 2 to the Regulations meant that the visa ceased to have effect 35 days after 3 April 1998 (i.e. 8 May 1998).

13. On 12 May 1998 the first applicant commenced judicial review proceedings in relation to the decision of the RRT given on 3 April 1998.  However, no application was made for any further bridging visa and none was granted in respect of the judicial review proceedings.  On 20 November 1998 a judge of this Court set aside the decision of the RRT given on 3 April 1998 and remitted the matter to the RRT for further hearing.  For the reasons already mentioned, no bridging visa A was in place at that time.

14. On 18 May 1999 the Refugee Review Tribunal again affirmed the decision of the delegate.  Of course, the first applicant held no bridging visa at that time.

15. On 7 June 1999 the first applicant commenced a second judicial review proceeding in the Federal Court in relation to the second decision of the RRT given on 18 May 1999.

16. On 5 July 1999 the first applicant was granted a bridging visa A in relation to the judicial review proceedings commenced on 7 June 1999.  The bridging visa A which was granted on 5 July 1999 also ceased to have effect on the same day, because on that same day a bridging visa B was granted to the first applicant.  The bridging visa B was granted because that visa allowed the first applicant to travel outside Australia.

17. On 30 November 1999 a judge of this Court entered consent orders in relation to the application brought on 7 June 1999 and remitted the matter to the RRT for a third hearing. The effect of that order meant that the bridging visa B, which was granted on 5 July 1999, ceased to have effect on 28 December 1999 by operation of law: Item 020.512(b)(i) of Schedule 2 to the Regulations. Thereafter, the first applicant did not hold either a bridging visa A or a bridging visa B.

18. On 19 May 2000 the RRT, for the third time, affirmed the decision of the delegate.  On 3 July 2000 the first applicant commenced judicial review proceedings for the third time in relation to the decision of the RRT given on 19 May 2000.  No application was made for a bridging visa.  On 11 April 2001 the Federal Court dismissed the first applicant’s application for judicial review.  On 30 April 2001 the first applicant filed a notice of appeal against the order of the single judge of the Federal Court dismissing the application for judicial review.  On 21 December 2001 the Full Court of the Federal Court dismissed that appeal.  On 3 January 2002 the first applicant sought special leave to appeal to the High Court from the order of the Full Court of the Federal Court dismissing the appeal.  On 11 April 2003 special leave to appeal was refused by the High Court of Australia.

19. The first applicant held no visa of any kind between 28 December 1999 and 11 April 2003 when the High Court refused special leave.

20. On 30 March 2004 the first applicant commenced proceedings in the High Court of Australia seeking judicial review of the decision of the Minister’s delegate made on 7 November 1996 to refuse him a protection visa.

21. On that day, the first applicant was granted a bridging visa E in connection with those proceedings.  He still holds a bridging visa E.

22. However, the first applicant does not hold a bridging visa A and has not held a bridging visa A since 5 July 1999 and, in that case, only for that day.  His previous bridging visa A expired on 8 May 1998.

23. For the reasons I have already given, the applicants’ application is without merit and based upon a factual misapprehension, i.e. that the first applicant is presently the holder of a bridging visa A.  The second and third applicants have never held a bridging visa A independently of the first applicant.  In those circumstances, the application must be dismissed.

24. The applicants must pay the respondent’s costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:            19 August 2005

Counsel for the Applicants:	Mr S O Akpata appeared in person
Counsel for the Respondent:	Ms S Maharaj with Mr M Kennedy
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 August 2005
Date of Judgment:	19 August 2005