Akpata v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 1 April 2004 the applicant filed an application under ss 39B and 44 of the Judiciary Act 1903 (Cth) seeking to restrain the respondent Minister from making any decision on the applicant's application for a parent 103 visa. 2 There is a history to this matter which is not disclosed in the applicant's supporting affidavits but which is known to me, having sat on a Full Court which considered the applicant's appeal against a previous decision of the Minister: see Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65. 3 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'. 4 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), where the total of these terms is two years or more: s 501(7)(c) and (d). 5 The previous Minister exercised the power under s 501 in relation to the applicant and determined that the applicant did not pass the character test and refused his application for the parent visa. The decision had the effect of cancelling his then bridging visa and made him liable to detention and, subsequently, would have made him liable to removal under the Act: s 198. The applicant sought review of that decision but the decision was affirmed by a judge of this Court. His appeal to the Full Court was allowed and the Minister's decision quashed, and the matter remitted to the Minister for further consideration. The basis of the decision of the Full Court was that the Minister had been provided with material which was prejudicial to the applicant and of which the applicant was unaware. 6 The applicant pleaded guilty and was convicted of four counts of false pretences in the Adelaide Magistrates Court on 30 July 1996 (the false pretences convictions). He was sentenced to 12 months imprisonment with a non-parole period of five months and was ordered to pay $20,193 to the Australian and New Zealand Banking Group Ltd. 7 On 11 April 2001, following a trial, the applicant was convicted of 25 counts of dishonesty offences. On 3 August 2001 the applicant was sentenced to 12 months imprisonment, this time with a non-parole period of six months. Those convictions arose out of claims made on Workcover Corporation arising out of an alleged injury to the applicant's left hand (the Workcover convictions). 8 Both sentences independently and cumulatively would mean that the applicant has a substantial criminal record and it would also mean that he would be liable not to pass the character test. 9 On 4 May 2001 the appellant appealed from the Workcover convictions entered in the Magistrates Court to a judge of the Supreme Court. The appeal was heard by Mullighan J on 19 September 2001 and his decision, dismissing the appeal, was delivered on 31 October 2001. 10 On 30 May 2003 the applicant issued an application in the Supreme Court of South Australia seeking leave to appeal from the decision of Mullighan J. The matter was listed for hearing before Mullighan J. Section 50(1a)(c) of the Supreme Court Act 1935 (SA) requires a party seeking to appeal from an order of a judge of the Supreme Court on appeal from the Magistrates Court to obtain leave of the judge or the Full Court. 11 Rule 94 of the Supreme Court Rules provides that leave may be sought either from the judge from whose decision the applicant seeks to appeal or from the Full Court itself but in either case within 14 days. The application in this case is well out of time. 12 The application was listed for hearing before Mullighan J on 4 September 2003 and adjourned to 24 November 2003. That date was changed to 26 November 2003 and, on that later date, the application was adjourned to 13 February 2004. It is not clear but I think the matter did not come on on 13 February 2004, but came on again on 27 February 2004. On that date, the application was adjourned until 26 October 2004 for hearing. 13 The applicant has not tendered any evidence to explain why the application for leave will not be heard until 18 months after it was made. There may be a perfectly straightforward explanation why the judge has not been able to hear and determine the application. In my experience, applications of this kind are usually heard shortly after they are made. It is in the interests of justice, if a conviction is to be set aside, that that occurs as soon as possible, both from the applicant's point of view and from the point of view of the authorities, in case a new trial is required. 14 The applicant has exhibited a letter from Mullighan J's associate confirming that the application for leave to appeal is listed for hearing before his Honour on 26 October 2004 at 10.00 am. 15 The applicant has apparently also issued an application, which is also to be heard by Mullighan J on 26 October 2004, to set aside Mullighan J's judgment. It is not clear but I believe that the application is based upon the obtaining of fresh evidence, which is said to support the application. 16 The applicant has exhibited his proposed Notice of Appeal to the Full Court. The grounds of appeal are: '1. Denial of natural justice unsatisfactory procedure of trail [sic] denaial [sic] of voir dire hearing. 1.1 The learned and Hon. Mullighan J eared [sic] in law for not concluding that the complaiinnant [sic] had not proved that at all relevant times I was not suffering pain and incapacity due to a psychological condition and therefore had not proved that the obtaining of the benefits was dishonest. 1.2 The Hon Judge erred on the face of record by concluding and dismissing the appeal against conviction and also dismissing the grounds of the manisfestly [sic] excessive sentence. 1.3 The orders for reparation and cost.' 17 He has also exhibited a copy of an affidavit filed in the Supreme Court in support of an order extending the time within which he might seek leave to appeal. He has deposed that if he had been able to afford legal representation he would have appealed within time; that he was not released from prison until 2 February 2002 and was taken into detention on 13 February 2002; and that due to his 'family and immigration status and litigations [sic] and the uncertainty of our future has caused this delay'. 18 The applicant is seeking leave, I think, to appeal against both conviction and sentence. He must first obtain an extension of time within which to seek leave to appeal. Assuming that the applicant was granted an extension of time to seek leave to appeal, leave would only usually be granted when the grounds of appeal disclose a question or principle of law of general importance (Campbell v O'Sullivan [1947] SASR 195), or if it appears the applicant has suffered or might suffer a substantial injustice and, in all cases, where the decision is attended by sufficient doubt to warrant the Full Court considering the matter. 19 This will be a matter, of course, for Mullighan J but it is difficult to think that the applicant would obtain leave to appeal against sentence when the sentence has been fully served. 20 There is nothing on the papers before me to suggest that he will be granted leave. The only ground of appeal which identifies any alleged error is that in paragraph 1.1, which complains of Mullighan J's failure to conclude that the complainant 'had not proved that at all relevant times I was not suffering pain and incapacity due to a psychological condition and therefore had not proved that the obtaining of the benefits was dishonest'. The applicant has not exhibited the magistrate's decision or Mullighan J's decision. 21 It is not clear to me whether the complainant needed to prove the absence of a psychological condition. I cannot, therefore, assess the applicant's prospects of success on this application for leave to appeal. 22 On 30 May 2003 the applicant also appealed to the Supreme Court against the false pretences convictions. I am not sure how he could have appealed against convictions which were entered in recognition of his guilty plea. That appeal would have been nearly seven years out of time. The sentence in respect of those offences had, of course, been served nearly six years before the appeal was brought. 23 The application for an extension of time within which to appeal was heard and dismissed by Perry J on 29 August 2003. On the same day, Perry J dismissed an application for leave to appeal from his decision. On 15 September 2003 the applicant apparently applied to the Full Court of the Supreme Court for leave to appeal to the Full Court. That application has not been prosecuted. 24 The applicant claims that the Minister should be restrained from considering his application for a parent 103 visa until such time as his application for leave to appeal is heard and determined by the Full Court of the Supreme Court. He fears that if the Minister were to consider that application she might exercise her powers under s 501 of the Act and refuse his application and cancel his existing visa. 25 In the case of the false pretences convictions, he has exhausted all of his rights. He sought leave to appeal which was refused by Perry J. On my understanding of r 94, he does not now have a right to seek leave from the Full Court. Rule 94 offers alternative rights - a right to seek leave from a single judge or a right to seek leave from the Full Court. They are not cumulative rights. In any event, there is not a scintilla of evidence before me to suggest that an application for leave to appeal has any prospects of success. 26 If, of course, the decision of Perry J stands, then the applicant remains a person who has been sentenced to a term of imprisonment of 12 months or more and, in those circumstances, has a substantial criminal record for the purpose of s 501(7) and may not pass the character test under s 501(6). 27 The applicant has not had any application for leave to appeal refused from the Workcover convictions and, therefore, has not exhausted his rights to seek leave to appeal. However, he faces formidable problems in obtaining leave. First, the application would be a long way out of time. Secondly, he has already served his sentence, which would be a reason to refuse him leave in that regard. 28 The applicant does not have a right to appeal. At best, he has a somewhat tenuous right to seek leave to appeal. 29 The applicant has placed no evidence before me which would allow me to assess his prospects of success on an application for leave to appeal in relation to the Workcover convictions. The only proposed ground of appeal which particularises any error is not supported by any evidence. It is not self-evident to me that the applicant suggested it in that proposed ground or that Mullighan J did not consider that matter. 30 I am not satisfied that there is any material before me to support the application to restrain the Minister from performing the duties imposed upon her by the Act. She has a duty to consider the applicant's application and she should not be restrained from exercising that duty without evidence that the performance of that duty could lead to an injustice. 31 On an application such as this, the applicant must establish that there is a serious question to be tried. 32 In my opinion, the applicant has not passed the threshold test necessary to make out that matter. In my opinion, he has not demonstrated that there is any serious question to be tried. I am also not satisfied that at the present time, even if there were a serious question to be tried, the balance of convenience necessarily falls the way of the applicant. It may be that if the Minister considered the application and exercised the power given her under s 501 and cancelled the applicant's existing visa under that section, the applicant may, in those circumstances, be able to demonstrate that the balance of convenience lies his way but, at this stage, it cannot be said, in my opinion, that the balance of convenience is with the applicant, simply because the Minister may consider, as she is obliged, his application for a parent visa. 33 In all those circumstances, the application must be dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.