Omar Ahmed Omar v Minister for Immigration & Multicultural Affairs [1998] FCA 160 (28 January 1998)

Last Updated: 9 March 1998

FEDERAL COURT OF AUSTRALIA

MIGRATION - appellant convicted of several offences and sentenced to imprisonment - appellant in custody - order for deportation of the appellant made by the respondent Minister pursuant to ss 200, 201 of the Migration Act 1958 (Cth) - appeal to the AAT affirmed the Minister's decision - single judge of the Federal Court dismissed appeal against the AAT's decision and refused application for the release of the appellant from custody - appellant appeals to the Full Court - appeal not yet heard.

MIGRATION - appellant applies for stay of the deportation order pending the hearing of the related appeal - single judge refuses application - appellant appeals to the Full Court - consideration of whether the appeal has reasonable grounds - whether the AAT wrongly failed to consider that the deportation order was, in effect, a lifetime banishment of the appellant from Australia (schedule 5 of the Migration Regulations) - whether the AAT failed to consider the likelihood of rehabilitation or recidivism of the appellant - whether the AAT failed to deal with evidence in a logical manner - whether the AAT failed to properly consider the effects of the appellant's deportation on his children and the ability of his then defacto wife to care for their children - appeal dismissed with costs - related appeal not yet heard.

Migration Act 1958 (Cth) ss 200, 201

Migration Regulations Schedule 5

Alexander & Ors v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 referred to

OMAR AHMED OMAR V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 704 of 1997

CORAM: BLACK CJ, NORTH J AND FINKELSTEIN J

DATE: 28 JANUARY 1998

PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 704 of 1997

BETWEEN:	OMAR AHMED OMAR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	BLACK CJ, NORTH J AND FINKELSTEIN J
DATE OF ORDER:	28 JANUARY 1998
WHERE MADE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Appeal dismissed.

2. The appellant pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 704 of 1997

BETWEEN:	OMAR AHMED OMAR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	BLACK CJ, NORTH J AND FINKELSTEIN J
DATE:	28 JANUARY 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:

This is an appeal from a judgment of Marshall J dismissing an application by the appellant, Omar Ahmed Omar, for a stay, pending the hearing and determination of an appeal he has brought from a judgment of Sundberg J, of an order that he be deported from Australia.

The matter comes before us in this way. On 6 June 1997, a delegate of the respondent Minister made an order under s 200 of the Migration Act 1958 (Cth) ("the Act") that the appellant, a non-citizen who has been convicted of several offences in Australia and sentenced to imprisonment for a period not less than one year, be deported. It is clear that the appellant has a very substantial and serious criminal history and it was not in dispute that, by virtue of s 201 he was a person in respect of whom a deportation order may be made under
s 200 of the Act.

On 24 June 1997, the appellant appealed to the Administrative Appeals Tribunal ("AAT") against the decision that he be deported. On 26 September 1997, after a hearing at which the appellant was represented, the AAT affirmed the delegate's decision. The AAT was constituted on this occasion by Deputy President McDonald who delivered substantial and careful reasons for his decision.

On 2 October 1997, the appellant appealed to this Court against the decision of the AAT. On 11 December 1997, having heard an application by the respondent that the appeal be dismissed on the basis that it was without grounds, Sundberg J dismissed the appeal and refused an application for the release of the appellant from custody. The appellant then, on the same day, instituted an appeal from the judgment of Sundberg J.

The present appeal, from the judgment of Marshall J, came about because the appellant sought to have the deportation order stayed pending the hearing and determination of his appeal from the judgment of Sundberg J.

The appeal from the judgment of Sundberg J has yet to be heard and the appellant made an application, which was considered by Marshall J, that the deportation order be stayed pending the hearing and determination of that appeal. Marshall J considered the application for a stay, which at that stage was argued by the appellant in person, and concluded that since the appeal from the judgment of Sundberg J had no reasonable prospect of success, the stay application should be dismissed. Accordingly on 22 January 1998, Marshall J dismissed the stay application.

Having been unsuccessful before Marshall J, and his deportation then being imminent, the appellant instituted the present appeal to this Full Court which was convened as a matter of urgency to hear the appeal on Friday 23 January 1998. When the appeal came on for hearing on the afternoon of 23 January 1988, the appellant was represented by Mr Krohn of counsel. As Mr Krohn had been briefed only on that day and told us - as we accepted - that there had been insufficient time for him to prepare a case, we thought it right to give the appellant's counsel the opportunity to examine the matter to see if, as he submitted there might well be, there were any arguable grounds that would justify the stay of the deportation order pending the appeal from Marshall J's order. The Court therefore granted the appellant an adjournment of the hearing of his appeal until 28 January 1998 and, in aid of that, ordered that the deportation order be stayed until 4.15pm on that date.

When the appeal came on for hearing before us on 28 January 1998, the appellant was again represented by Mr Krohn who, in the course of his able argument, contended that the appeal was not groundless for four reasons.

The first ground of appeal was that by operation of schedule 5 of the Migration Regulations the criminal deportation order was, in effect, a lifetime banishment of the appellant from Australia. It was submitted that, in these circumstances, the AAT was bound to take into account the effective lifetime banishment of the appellant from Australia, but had failed to do so. We are unable to accept that such an argument is reasonably open. It is apparent to us, from the AAT's careful reasons for its decision, that it was aware that the effect of a deportation order would be that the appellant would be deported from Australia on a permanent basis.

Mr Krohn then argued that the AAT had wrongly failed to consider, in assessing a critical issue, namely the likelihood of rehabilitation on the one hand or recidivism on the other, the very relevant fact that the Adult Parole Board in Victoria had granted the appellant parole in respect of his most recent term of imprisonment. The parole to which the appellant's counsel referred was in respect of a conviction and sentence of the Supreme Court of the Australian Capital Territory in March 1991 for the possession of a trafficable quantity of heroin, a sentence that was increased from five and a half years to ten years imprisonment in September 1991 by a Full Court of this Court.

We have again considered the reasons for the decision of the AAT and it is quite apparent that the Tribunal was aware that the Parole Board had granted parole to the appellant. Moreover, the appellant, who was represented before the AAT, has not shown that the Tribunal failed to take into account any aspect that it was actually requested to take into account. The matter of parole generally was clearly put before the AAT and was a matter of which it was aware, although the precise way in which the Tribunal was asked to take that matter into account was not before us. However the matter is viewed, we are unable to conclude that there is any substance in any ground of appeal relating to this aspect.

Then it was said that the AAT had failed to deal in a logical manner with various aspects of the evidence before it, and particularly the drug-free results of tests to which the appellant had been subjected in prison since 1994. We consider that what is involved here, however, is in reality a complaint about the weight the Tribunal gave to elements of the evidence and that it does not provide an arguable ground of appeal. Likewise, there is no substance in an argument that the Tribunal dealt incorrectly with evidence about warnings of deportation given to the appellant in the past.

Finally, it was argued that there was the prospect of a successful appeal on the ground that the Tribunal failed to consider, or to consider properly, the likely effects of the appellant's deportation on the ability of his then de facto wife to care for their children. Such a ground, or a ground raising similar points, was dealt with by Sundberg J who concluded that it was without arguable substance. Marshall J was of the same view, and so are we. We think it clear that the AAT did look to the effects of the appellant's deportation on his children and did so as a primary and serious matter, although one that nevertheless had to be weighed up against other considerations which, in the end, favoured deportation.

The role of the Court in a case such as this should be mentioned. The AAT is the body that has the obligation to provide a review on the merits of decisions made in circumstances such as these by the Minister or his delegate that a person should be deported. There was such a hearing and the appellant was represented at it. The role of the Court on appeal from the AAT is to consider whether the Tribunal erred in law in reaching its decision. The Court does not make its own decision on the merits. Sundberg J held that there was no arguable case that the AAT had erred in law and Marshall J was, in effect, of the same view. This Full Court, having adjourned the matter so that the case might be fully considered by the newly-retained counsel for the appellant, is likewise of the view that there are no reasonably arguable grounds of appeal. We see no basis for disturbing the order made by Marshall J and accordingly the appeal should be dismissed with costs.

There was some discussion in the course of argument about whether the appellant might proceed by way of original application to this Full Court for a stay, rather than by way of an appeal from the decision of Marshall J refusing a stay: see Alexander & Ors v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 690-692. This matter was not pursued and the matter before us remained, in form, an appeal from Marshall J. It must follow from what we have said, however, that the outcome would not have been different had the matter proceeded by way of original application if we had been persuaded that such was a permissible course.

I certify that this and the preceding

four (4) pages are a true and correct copy of

the reasons for judgment of the

Court.

Associate:

Dated: 28 January 1998

Counsel for the appellant: Mr A Krohn

Solicitors for the appellant: Baker and Armstrong

Counsel for the respondent: Mr C Gunst QC

Solicitors for the respondent: Australian Government Solicitor

Date of hearing: 23, 28 January 1998

Date of Judgment: 28 January 1998