Sharma, Kaushal v Minister for Immigration and Multicultural Affairs

[1997] FCA 1127

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 711 of 1997

BETWEEN:	KAUSHAL SHARMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		HILL J
DATE:		15 OCTOBER 1997
PLACE:		SYDNEY

REASONS FOR JUDGMENT

The applicant, Mr Sharma, moves the Court for an order that there be a stay of his deportation or removal from Australia which is scheduled to take place on 16 October 1997 pending an appeal being brought by Mr Sharma from a decision of Sackville J dated 10 October 1997.  Mr Khalsa, a Migration Agent, sought leave to appear for Mr Sharma this morning.  That leave was not opposed.  The application itself was, however, opposed on behalf of the respondent Minister for Immigration and Multicultural Affairs on the basis that there was no reasonable possibility of any appeal succeeding.

It was pointed out on behalf of the Minister that there had not yet been filed a notice setting out the grounds of appeal and it was implied that there was some question as to whether Mr Sharma had really authorised any appeal to be brought having regard to an affidavit read before me in which he said on oath that he felt he was being denied a right of appeal should he decide to exercise it (emphasis added).

The affidavit made it clear that no decision to appeal had been taken by Mr Sharma at least as at the date of the affidavit, 11 October 1997.  I thus adjourned the proceedings for two purposes: first, to enable Mr Sharma to fax to my associate an authority to Mr Khalsa to lodge an appeal on his behalf and second for there to be prepared and filed a draft notice of appeal which would give some indication of the grounds upon which an appeal might be brought.
When the matter was called on for hearing this afternoon it appeared that Mr Sharma had not availed himself of the opportunity to send a facsimile message to my associate.  Mr Khalsa advised me that after consultation with an adviser he had been unable to come up with any grounds of appeal attacking the judgment of Sackville J.  I am therefore left in the situation that an application is brought to in effect enjoin the Minister from removing Mr Sharma from Australia in circumstances where it is unclear that he actually wants to appeal and where his advisers do not suggest any grounds of appeal that he may have.

Mr Khalsa says I should at least grant relief so as to enable Mr Sharma to make a decision but the power to restrain Mr Sharma's removal would be a power in aid of an appeal and when an appeal has neither been brought nor may ever be brought and the evidence is such that no decision has been made and no grounds for an appeal have been suggested.  It is obviously not appropriate that injunctive relief be granted.

I would in the circumstances dismiss the motion.  I order Mr Sharma to pay the Minister's costs of the motion.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:             24 October 1997

Migration Agent appearing for Mr Sharma	Mr Khalsa
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 1997
Date of Judgment:	15 October 1997