Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 19 (22 February 2006)

MIGRATION – application for leave to appeal – Federal Court Rules O 32 r 2(1)(d) – leave to appeal refused and appeal otherwise dismissed

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Federal Court Rules 1979 (Cth), O 32 r 2(1)(d)

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145 referred to
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 referred to
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2005] FCA 1147 referred to

STEPHEN OGHO AKPATA & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SAD 207 of 2005

KIEFEL, KENNY AND GRAHAM JJ
22 FEBRUARY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 207 OF 2005

BETWEEN:	STEPHEN OGHO AKPATA & ORS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	KIEFEL, KENNY AND GRAHAM JJ
DATE OF ORDER:	22 FEBRUARY 2006
WHERE MADE:	ADELAIDE

3. The first appellant pay the respondent’s costs of the appeal.

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	SAD 207 OF 2005

BETWEEN:	STEPHEN OGHO AKPATA & ORS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	KIEFEL, KENNY AND GRAHAM JJ
DATE:	22 FEBRUARY 2006
PLACE:	ADELAIDE

1 This appeal arises from an application for an injunction to restrain the respondent from "nulifying [sic] and ceasing" certain bridging visas allegedly held by the appellants. The first and second appellants are husband and wife and the third appellant is their daughter. The appellants are nationals of Nigeria.

2 The Court first listed the injunction application for hearing on 9 June 2005. The appellants wrote to the Court requesting an adjournment. The primary judge’s associate replied by letter of 6 June 2005 that his Honour had declined to adjourn the hearing. None of the appellants appeared at the hearing on 9 June 2005. Pursuant to O 32 r 2(1)(d) of the Federal Court Rules 1979 (Cth) ("the Rules"), his Honour proceeded with the trial in their absence. The respondent read various affidavits into evidence. In essence, the respondent’s evidence was that none of the appellants possessed the relevant bridging visa (namely, a bridging visa A). The primary judge reserved judgment.

3 Soon after the hearing of 9 June 2005, the appellants informed the Court that they had not received the letter from the judge’s associate prior to that hearing. As a result, the primary judge re-listed the matter for 10 August 2005 at 1:00 pm. The appellants were informed of this fact.

4 The appellants advised the Court that they wished to have the hearing of the matter stayed until after the High Court gave judgment in another matter concerning them. His Honour’s associate informed the appellants by letter that, if they wished to have the proceedings stayed, they should make an application at the commencement of the hearing on 10 August 2005.

5 On 8 August 2005, the first appellant delivered a letter to the Registry requesting a stay or adjournment of the 10 August 2005 hearing. This letter stated that the first appellant’s energy had been devoted to preparing for a 9 August 2005 hearing before the High Court and that, because of mental health issues, the first appellant would not have the energy or mental capacity to attend another hearing the following day.

6 Also on 8 August 2005, a reply from the primary judge’s associate was delivered to the appellants’ place of residence. That reply again informed the appellants that, if they wished to have the proceedings stayed, they should make an application at the commencement of the hearing on 10 August 2005.

7 On 10 August 2005, his Honour’s associate received a message from the Court Registry to the effect that the first appellant had indicated that he was unable to attend the hearing as he was feeling suicidal and had taken medication that would result in him being asleep for the entire day. The Registry subsequently organised for police and an ambulance to attend at the appellants’ residence. Also during the 10 August hearing, his Honour’s Associate received an email from the Registry reporting on the police and ambulance attendance at the appellants’ residence. His Honour read out the email and its contents were included in the transcript of the hearing, which the appellants subsequently received.

8 As may already appear, none of the appellants appeared at the hearing on 10 August 2005. Once again, pursuant to O 32 r 2(1)(d) of the Rules, the primary judge proceeded with the trial in the appellants’ absence. His Honour reserved judgment and indicated that he would hand down judgment on 19 August 2005 unless any other application was made in the meantime.

9 On 11 August 2005, his Honour’s associate received a facsimile copy of a letter from the respondent’s solicitors to the first appellant. This letter stated that the respondent had learned that the first appellant had appeared in the Adelaide Magistrates Court at 2:15 pm on 10 August 2005.

10 Also on 11 August 2005, his Honour’s associate wrote to the first appellant informing him that the hearing of 10 August 2005 had taken place in his absence and that his Honour had reserved judgment. This letter noted that his Honour had received an email from the Court Registry about the police and ambulance attendance, to the effect that the first appellant had told police that he was not attending Court because he did not like his prospects of success. The letter also noted that the respondent had informed his Honour that the first appellant had presented submissions in the High Court on 9 August 2005 and had attended Adelaide Magistrate’s Court at 2:15 pm on 10 August 2005. The letter recorded the respondent’s submission that the first appellant had presented no satisfactory evidence as to his failure to attend Court. Finally, the letter noted that his Honour intended to deliver judgment on 19 August 2005 unless any other application was made in the meantime. A transcript of the 10 August 2005 hearing was attached to this letter.

11 On 12 August 2005, the first appellant filed a notice of motion, returnable on 19 August 2005, seeking a re-listing of the hearing. He also filed an affidavit. The affidavit stated that police and ambulance officers were not qualified to determine whether the first appellant was in a balanced state of mind. The first appellant also stated that his appearance before the High Court on 9 August 2005 did not prove he was in a stable mental condition. He claimed that he had to attend the Adelaide Magistrates Court because the police had told him that if he did not attend a warrant would be issued for his arrest.

12 On 19 August 2005, the primary judge heard the application for re-listing. The first appellant read his affidavit on the motion. The respondent read an affidavit of Elizabeth Mary Inglis, one of the respondent’s solicitors. Ms Inglis deposed to having witnessed the first appellant make oral submissions before the High Court on 9 August 2005. Ms Inglis attached as exhibits copies of the files in the Adelaide Magistrate’s Court relating to the first appellant’s appearance there on 10 August 2005. His Honour suppressed the publication of the copied files.

13 The learned primary judge concluded that the appellants gave no satisfactory explanation for not attending the hearings on 9 June and 10 August 2005: Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145 at [33]. Accordingly, his Honour dismissed the application for re-listing and delivered judgment on the application for an injunction. His Honour dismissed the application for an injunction on the grounds that none of the appellants possessed the relevant bridging visa.

14 The appellants purport to appeal from the orders of the primary judge made on 19 August 2005. The grounds in the notice of appeal allege that his Honour erred in that (1) the appellant was not given a fair hearing; (2) the judgment was based on "half truths"; and (3) the witnesses were not cross-examined by the first appellant.

15 The primary judge’s order dismissing the application to re-list was interlocutory in nature. Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the appellants require leave to appeal. An application for leave was made by the first appellant in reply. We would refuse such leave. It was plainly open to his Honour to find that the appellants had not provided a satisfactory explanation for their failure to appear at the relevant hearings. Given this, and the hopelessness of the appellants’ case, it was plainly an appropriate exercise of discretion to proceed with the trial in the appellants’ absence.

16 As a Full Court of this Court said in an earlier case involving the first appellant, in such a case as this, where the appellants were absent from the hearing giving rise to the judgment under appeal, the appellants ought properly have applied to have the judgment under appeal set aside under O 32 r 2(2) of the Rules: see Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 at [13] per Branson, Finn and Mansfield JJ. As the Court also said on that occasion, an appeal should not ordinarily be brought against orders that are open to be set aside on an application to the judge who made them. Nonetheless, as on that occasion, we consider it expedient in the interests of justice to hear and determine the appeal.

17 With respect to the dismissal of the application for an injunction, the appellants have identified no error in the decision of the primary judge and we find none. In his reasons for judgment, his Honour provided a review of the procedural history (dating back over ten years to 22 December 1995 when the first appellant lodged his application for a protection visa) of the appellants’ dealings with the Department of Immigration and Multicultural and Indigenous Affairs and the courts: see Akpata v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2005] FCA 1147 at [6]- [22]. Some of these details are set out in our own account of the proceeding. It is plain enough from this history that the first appellant has chosen not to take advantage of the opportunities that the Court has given him to present his case to it; and there is no substance in the grounds of appeal set out in the appellants’ notice of appeal. It is clear that the first appellant held no visa of any kind between 28 December 1999 and 30 March 2004. The first appellant conceded that he made no application for a bridging visa A after 5 July 1999, although he said that he was not aware that he should make one. The first appellant was granted a bridging visa E in connection with another High Court application on 30 March 2004 and continued to hold a bridging visa E at the time of the judgment under appeal. This visa has no bearing on the present appeal. It was clearly open to his Honour to find, on the basis of the evidence before him, that, at the time they filed their application for an injunction, none of the appellants possessed the relevant bridging visa, whether A or B. Indeed, the evidence clearly established that the appellants did not possess such visas. Accordingly, the application for an injunction was properly dismissed.

18 For these reasons, the appeal against the order dismissing the application for an injunction should be dismissed. It follows that the first appellant should pay the respondent’s costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Kenny and Graham JJ.

Counsel for the Appellant:	Self represented

Counsel for the Respondent:	Ms S Maharaj QC with Ms C Nash

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	22 February 2006
Date of Judgment:	22 February 2006

Federal Court of Australia - Full Court Decisions

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 19 (22 February 2006)