Collins, Brett Anthony v Minister for Immigration & Ethnic Affairs

[1982] FCA 257

Re: BRETT ANTHONY COLLINS
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G209 of 1982
Immigration and aliens

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Ellicott
Fitzgerald JJ.

CATCHWORDS

Immigration and aliens _ deportation order _ application for stay pending appeal

Migration Act, ss.13, 20 and 66E

HEARING

SYDNEY

#DATE 17:11:1982

ORDER

1. The application by the appellant for a stay of operation of the deportation order made by the respondent on 4 July 1980 be dismissed.

2. Brett Anthony Collins pay to the Minister his costs of the application.

JUDGE1

This is an application for a stay of the operation of a deportation order made by the Minister for Immigration and Ethnic Affairs on 4 July 1980 in respect of Brett Anthony Collins. The stay is sought pending the hearing and determination of an appeal which has been lodged against a decision of the Administrative Appeals Tribunal constituted by Davies J. given on 28 October 1982. This decision was to the effect that the Minister's decision given on 21 September 1982 wherein he decided not to interfere with the deportation order of 4 July 1980 was a decision pursuant to section 20 of the Migration Act.

The notice of appeal, which we were informed was filed and served on 15 November 1982, raises the question of law whether the decision of Davies J. may be reviewed pursuant to s.66E of the Migration Act.

The grounds of the appeal are that the Tribunal (Davies J.) erred in holding that the Minister's decision was a decision made under s.20, which relates to revocation, and that the decision was in fact a decision made under s.13, which relates to orders of deportation; and, that, for those reasons, the decision was reviewable by the Tribunal contrary to the decision of Davies J.

The Court is not satisfied that the applicant has made out a case for a stay. Two affidavits have been referred to, one by Mr Bettens of 20 October 1982 and one by Mr Collins of 21 September 1982, but these do not really deal with the background circumstances which would enable this Court to judge of the likely course of events in relation to the operation of the order or give any ground for the Court's imposition of a stay. In addition, it is argued for the Minister that no prospect of success is revealed by the grounds which have been taken. The Court is not persuaded that there is a substantial ground of appeal disclosed by the material before us.

Finally, we are referred by Counsel for the Minister to the course which has occurred in relation to a previous appeal by Mr Collins from the Tribunal in matter G90 of 1982. This previous appeal has today been dismissed for want of prosecution after a considerable delay. It is submitted it may be expected that the present appeal may be conducted in similar fashion and so used for purposes of delay. We express no view on this latter point. Our Rules provide for action which may be taken by a respondent, if that occurs.

On the material before us, we are unpersuaded that there should be any stay granted to the applicant and, accordingly, the application is dismissed, and Mr Collins will be ordered to pay the respondent's costs of the application.