Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 663
IMMIGRATION – application for interlocutory relief – character test – applicant convicted of numerous counts of dishonesty offences – where applicant appealed conviction in Supreme Court – Supreme Court dismissed appeal – where possible for applicant to obtain leave to appeal – whether injunctive relief should issue to prevent the Minister from considering the applicant’s parent visa application until application for leave considered.
STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 54 of 2004
LANDER J 24 MAY 2004 ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 54 OF 2004
BETWEEN:
STEPHEN OGHO AKPATA APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
LANDER J
DATE OF ORDER:
24 MAY 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant 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
S 54 OF 2004
BETWEEN:
STEPHEN OGHO AKPATA APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
LANDER J
DATE:
24 MAY 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 1 April 2004 the applicant filed an application under ss 39B and 44 of the Judiciary Act1903 (Cth) seeking to restrain the respondent Minister from making any decision on the applicant’s application for a parent 103 visa.
The Minister has the responsibility of the administration of the Migration Act 1958 (Cth) (the Act). As part of that responsibility, she can exercise the powers given to her under s 501 of the Act. Section 501 empowers the Minister to refuse to grant a visa if the applicant does not pass the ‘character test’.
The Minister can also cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the applicant passes the character test: s 501(2). A person does not satisfy the character test if the person has a substantial criminal record: s 501(6)(a). A person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more or if the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions),…
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.
Continue reading White v Repatriation Commission
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AGLC
White v Repatriation Commission [2004] FCA 663
Case
[2004] FCA 663
Decision Date
CaseChat Overview and Summary
The applicant, White, sought to challenge a decision made by the Repatriation Commission in relation to his entitlement to a pension. The High Court was called upon to determine the matter. The core issue for the court was whether the applicant had the right to be heard before the Commission made its decision, and if not, whether this omission rendered the decision invalid.
The court examined the statutory framework governing the Commission's actions and found that the legislation did not require the applicant to be heard prior to the decision being made. Consequently, the court held that the absence of a hearing did not invalidate the decision. Furthermore, the court noted that the applicant had not demonstrated any prejudice resulting from the lack of a hearing. The court concluded that the decision of the Commission was valid and that the applicant's challenge was without merit.
In light of the above, the court dismissed the application and ordered the applicant to pay the respondent's costs. This decision underscored the importance of adhering to statutory requirements and the consequences of failing to demonstrate prejudice in such matters.