Akpata v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The applicant has applied for a 'parent 103 visa'. The applicant instituted proceedings in this Court seeking final and interlocutory injunctions to restrain and prevent the respondent (the Minister) from making any decision in relation to his application for that visa until certain proceedings in the Supreme Court of South Australia are finalised. The primary Judge dismissed the application for an interlocutory injunction. The applicant seeks leave to appeal from the decision of the primary Judge pursuant to s 24(1A) of the Federal Court of Australia Act, 1976 (Cth). For the reasons given below that application is refused. 2 On 26 July 1999 the applicant applied for a Parent (Migrant) Class AX (Subclass 103) (Parent) visa. That application was considered by the Minister personally. On 11 June, 2002, the Minister refused to grant that visa on the basis that the Minister was not satisfied that the applicant passed the character test: see s 501(1) of the Act. The effect of that decision, at least if it were valid, was to cancel the bridging visa then held by the applicant: see s 501F(3) of the Act. Consequently the applicant was treated as an 'unlawful non citizen' and was taken into detention on 25 May 2004 pursuant to s 189 of the Act. The applicant instituted proceedings challenging the Minister's decision under s 501 of the Act. He was ultimately successful in those proceedings: see Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (Akpata)and the decision of the Minister refusing to grant the applicant a parent visa was quashed. The basis for that decision was that the applicant had not been afforded procedural fairness in the decision making process. The applicant was consequently released from detention. 3 The current application is to prevent the Minister from reconsidering the application for a parent visa, or at least to prevent the Minister from refusing it pursuant to s 501 of the Act, until the Supreme Court proceedings are finalised. The application seeks final and interlocutory injunctions in the same terms. 4 Section 501 of the Act provides: '(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Note: Character test is defined by subsection (6). …… Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. … Pardons etc (10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if: (a) the conviction concerned had been quashed or otherwise nullified; or (b) the person has been pardoned in relation to the conviction concerned.'