FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 1472

STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 50 of 2001

DOWSETT J

11 OCTOBER 2001

HEARD IN BRISBANE (BY VIDEO LINK)

THE COURT ORDERS THAT:

1.         The application for an adjournment of the hearing of the appeal is declined.

2.         Costs be costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This matter has been listed for argument at the sittings of the Full Court in Adelaide in November.  It was at one stage set down for the August sittings but adjourned by the callover Judge, apparently because the appellant thought that he would be able to obtain funds in time for the November sittings.  After that callover, however, he was sentenced to a period of six months’ imprisonment following upon a conviction which had been announced in March or April of this year.  Submissions on sentence were made in May, and the sentence was passed in early August.  He now asks for the appeal to be adjourned until he is released from prison so that he can earn money to pay for the costs of legal representation.  It seems that he can no longer rely upon other sources of funds, or so he says.  Given that the appeal has already been adjourned once it is, on general principles, undesirable that it be adjourned again, particularly over the objection of the respondent.  However, if I were of the view that there was any prospect of the appellant’s not being able to obtain justice, I would be inclined to think seriously about adjourning it.  The notice of appeal does not suggest any substantial ground of appeal, but that may be attributable to the appellant’s incapacity to formulate his ground rather than the absence of any such ground.

2                     It is curious that the appellant did not, at the callover for the August sittings, draw attention to the possibility of his being imprisoned for the offence of which he had already been convicted.  It may be that he did not anticipate imprisonment, but it seems unlikely that he was not aware of it as at least a bare possibility.

3                     In the circumstances, I am of the view that the appeal should proceed at the November sittings.  The appellant should ensure that he is in a position to argue it, either on his own behalf or by legal representative.  If it appears in the course of the argument of the appeal that there is some point worthy of investigation, and if it seems that the appellant is likely to be prejudiced by the absence of legal counsel, then, it will be open to us to consider whether or not we should take some step to avoid that risk.  However, for the moment, given the nature of the grounds of appeal, it seems to me unlikely that this will occur.  I decline the application for an adjournment.  The case will remain on the list for argument in Adelaide on 23 November.  Costs in the cause.

Associate:

Dated:              19 October 2001