Omar Ahmed Omar v Department of Immigration & Multicultural Affairs [1998] FCA 17 (22 January 1998)

FEDERAL COURT OF AUSTRALIA

MIGRATION - deportation - decision of Minister to deport - whether deportation order should be stayed - principles relevant to stay deportation

Migration Act 1958 (Cth) ss 200, 201

Federal Court of Australia Act 1976 (Cth), s 29

Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498, applied

Commissioner of Taxation (Cth) v Myer Emporium (1986) 160 CLR 20, considered

Vabaza v Minister for Immigration and Multicultural Affairs (Sundberg J, 17 March 1997, unreported), applied

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, considered

Re Lawson and Minister for Immigration (1996) 43 ALD 661, considered

Servos v Repatriation Commission (1995) 56 FCR 377, considered

OMAR AHMED OMAR v DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 704 of 1997

MARSHALL J

22 JANUARY 1998

MELBOURNE

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

BETWEEN:	OMAR AHMED OMAR AppELLant
AND:	DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	22 JANUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appellant's notice of motion filed on 15 January 1998 be dismissed.

2. The appellant pay the respondent's costs of the notice of motion.

Note: Settlement and entry of orders is dealt 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:	DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MARSHALL J
DATE:	22 JANUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

By his notice of motion filed on 15 January 1998 the appellant, Omar Ahmed Omar sought a stay of a decision to deport him made by a delegate of the respondent on 6 June 1997. The decision of the respondent's delegate was affirmed by the Administrative Appeals Tribunal ("AAT") on 26 September 1997. On 2 October 1997 Mr Omar appealed to this Court. On 11 December 1997 Sundberg J dismissed Mr Omar's appeal. Also on 11 December 1997, Mr Omar filed an appeal from the judgment of Sundberg J. The application for a stay of Mr Omar's deportation pending the hearing and determination of his appeal from the judgment of Sundberg J by a Full Court is made pursuant to Order 52 r 17 of the Rules of Court and s 29(2) Federal Court of Australia Act 1976 (Cth). I permitted an abridgment of time to allow Mr Omar's notice of motion to be heard at 11.00 am on 20 January 1998.

BACKGROUND

Mr Omar is 41 years of age. He migrated from Lebanon with his parents and most of his siblings in 1976. On 13 December 1985 Mr Omar was convicted by the ACT Magistrates' Court of breaking and entering and was sentenced to eighteen months' imprisonment. As he had not been in Australia at that stage for 10 years and had been sentenced to over twelve months imprisonment, he became liable to be deported pursuant to what are now ss 200 and 201 of the Migration Act 1958 (Cth) ("the Act"). On 2 June 1986 Mr Omar was interviewed in Goulburn jail by an officer of the respondent's department and advised as to his liability for deportation. It is not in dispute that Mr Omar then understood that he was liable to be deported. On 17 June 1987 Mr Omar was convicted by the Supreme Court of the Australian Capital Territory ("the Supreme Court") on ten counts of supplying heroin and was sentenced to 6.5 years imprisonment. On 26 March 1991 Mr Omar was convicted by the Supreme Court for possessing a trafficable quantity of heroin for supply and was sentenced to 5.5 years imprisonment. On 4 September 1991 a Full Court of this Court increased the last mentioned sentence to 10 years' imprisonment.

On 14 December 1993 Mr Omar was again advised by the respondent's department that he was liable to deportation. As indicated above, the decision to deport him was made on 6 June 1997 and has survived challenge to the AAT and this Court at single judge level.

RELEVANT PRINCIPLES

An applicant for a stay of proceedings is required to demonstrate an appropriate case for such stay. See Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498, 499. Ordinarily a Court will grant a stay where the refusal to do so would render an appeal nugatory. See Commissioner of Taxation (Cth) v Myer Emporium (1986) 160 CLR 20, 222 per Dawson J. However, where an appellant lacks an arguable case in an appeal, a stay will be refused. See Vabaza v Minister for Immigration and Multicultural Affairs, (Sundberg J, 17 March 1997, unreported), which was an application to stay a deportation.

THE ISSUES

Mr Charles Gunst QC, who appeared for the respondent submitted that the appeal disclosed no reasonably arguable ground. Mr Omar, who represented himself, submitted that Sundberg J had made several errors in his judgment, the subject of Mr Omar's appeal, and that there were reasonably arguable grounds for his appeal. The first alleged error was that Sundberg J recounted that Mr Omar had received a warning that he was liable to deportation when Mr Omar contended that he had no such warning in writing. In reply, Mr Gunst submitted that no provision of the Act required such a warning but that in any event an oral warning was given in an interview in Goulburn jail and the same had been acknowledged by Mr Omar. I accept Mr Gunst's submissions on this issue.

Mr Omar next submitted that Sundberg J had incorrectly referred to Mr Omar as possessing a "significantly large amount of heroin" when arrested in respect of the offence that led to his being sentenced ultimately to 10 years' imprisonment. Mr Omar took issue with that description. However, as Mr Gunst submitted, all Sundberg J was doing at that point of his judgment was recounting findings made by the Full Court in 1991. Mr Omar's other complaints about the judgment of Sundberg J concerned his Honour's findings that

* the AAT had not given proper consideration to two relevant authorities;

* the AAT had given too much weight to whether Mr Omar was likely to re-offend; and

* the AAT had not taken into account all Mr Omar's circumstances.

The last two points were submitted by Mr Gunst to be matters of pure merit which were open to the AAT to deal with as it did. Sundberg J found as much and in my view was entitled to do so.

Sundberg J also found no basis for Mr Omar's submission that the AAT had not properly applied Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 and Re Lawson and Minister for Immigration (1996) 43 ALD 661. Having read the decision of the AAT and the judgment of his Honour I see no basis for Mr Omar's submission on that regard.

Having regard to the foregoing, it is evident that Mr Omar's appeal has no reasonable prospect of success and, consequently, I dismiss his stay application. I do so notwithstanding that the practical effect of such an order would be to remove from Australia the subject matter of the appeal, i.e., Mr Omar. Mr Gunst submitted that, even if deported, Mr Omar would be able to instruct lawyers to act for him on his appeal. Having regard to the fact that Mr Omar wishes to raise new evidence on the appeal, a matter with which I deal below, the persuasive force of Mr Gunst's submission on this issue is limited. . Notwithstanding that the subject matter of the appeal will be removed from Australia, following the dismissal of the stay application, the paramount consideration in my mind is that the appeal is doomed to fail.

NEW EVIDENCE

Mr Omar submitted that on appeal he would seek to have fresh evidence admitted as to the circumstances of his children having regard to his defacto wife's desertion of them on the day Sundberg J delivered his judgment. The extent of that fresh evidence was not made clear by Mr Omar. An appeal from a decision of the AAT is one which must be founded on an error or errors of law made by the AAT based on the factual material which was before the AAT. See for example Servos v Repatriation Commission (1995) 56 FCR 377. I cannot consider the possibility of new evidence being raised before the Full Court to form a different view, to the one I have expressed above, regarding the prospect of the appeal succeeding. This is especially so when the extent of that evidence has not been unambiguously outlined. In any event, Sundberg J and the AAT had regard to the circumstances of the children of Mr Omar being cared for without Mr Omar being present. The extent of such care extended beyond that undertaken by Mr Omar's de-facto wife to that also undertaken by Mr Omar's brothers.

ORDER

In all the circumstances referred to above, it is appropriate to order as follows:

1. The appellant's notice of motion filed on 15 January 1998 be dismissed.

2. The appellant pay the respondent's costs of the notice of motion.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated: 22 January 1998

The Appellant appeared in person
Counsel for the Respondent:	Mr Charles Gunst QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 January 1998
Date of Judgment:	22 January 1998