Akuoch Akuoch was charged in June over the alleged assault of his former girlfriend while visiting their child at her home in Flemington.

He plans to enter a formal plea of not guilty in the Magistrates’ Court on Tuesday with a hearing date likely to be set for early next year.

However, according to his legal counsel, Mr Akuoch has been told that his visa will not be extended and he must be prepared to leave the country by the end of the month.

Solicitor Kurt Esser, who has taken on Mr Akuoch’s case, will go to the Supreme Court in a bid to have the minister’s decision overturned so that Mr Akuoch can have his day in court.

He said the decision by the minister’s office risked derailing the legal process in which “a person has been formally charged in court and the defendant wants to plead not guilty”. In turn, this was “frustrating the right of the citizen to be tried [and] the right of the police to bring their charges,” he added.

The refusal to extend Mr Akuoch’s bridging visa would, according to Mr Esser, cause him to breach the terms of his bail which, in itself, would amount to a criminal offence. 

Mr Esser will seek a declaration requiring Mr Dutton to use his powers under the Migration Act to allow Mr Akuoch to remain in Australia until the matter is resolved. 

He said the case would raise interesting legal issues such as who prevails in a conflict of authority between a minister and the judiciary, and whether the rights of the citizen to a trial (as outlined in the Magna Carta) take precedence over the coercive powers of the minister. 

Mr Esser said Mr Akuoch had faced persecution in his war-torn homeland of South Sudan and was subsequently granted US citizenship. He relocated to Australia on a visitor visa in 2011.

He then applied for a remaining relative visa as he had a sister who lived in Melbourne, but this was knocked back in December 2012, a decision that was upheld by the Migration Review Tribunal 14 months later, in February 2014.

Since being charged in June, Mr Akuoch has failed in two approaches to the minister’s office to have his bridging visa extended.

His child with his ex-girlfriend was born in 2012. He is also the father of a second child, which is due in April.

Mr Esser said that the Victorian Human Rights Charter outlined a citizen’s right to have criminal charges decided in a fair hearing before an independent court.

“We have a charter that says we have these rights. I will be asking the court whether the charter is a mere form of words, or whether the courts are going to be fair dinkum,” he said.

A spokesperson for the Immigration Minister said they were unable to comment “as the matter is before the court”.