Re: RAMAZAN ALI BABAEI SOMAGHI
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G351 of 1990
FED No. 736
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Ryan J.(1)
HEARING
MELBOURNE
#DATE 6:12:1990
Counsel for applicant: Mr P.N. Rose
Solicitors for applicant: Erskine H. Rodan
Counsel for respondent: -
Solicitors for respondent: Australian Government Solicitor
JUDGE1
By motion on notice dated 3 December 1990 the applicant seeks first an order that:
"all proceedings to remove the Applicant from Australia be stayed pending the hearing and
determination of an appeal from the judgment of the Honourable Mr Justice Lockhart given at
Melbourne on the 22nd of November 1990;"
The order made by Lockhart J. on that date was that the application of the applicant for review pursuant to the Administrative Decisions (Judicial Review) Act 1977 be dismissed with costs. The grounds set out in the applicant's notice of appeal, except for those going to the question of whether the applicant had entered Australia which did not arise in the present case, are substantially identical to the grounds relied on in the notice of appeal in Heshmati v the Minister for Immigration, Local Government and Ethnic Affairs (VG 352 of 1990) in which I have just pronounced judgment. Lockhart J., in his reasons for judgment on Somaghi's application, recited that:
"This case was heard immediately after the hearing of the case of Heshmati against The Minister. There are many elements of fact and law common to both cases, though no question arises in the case of the applicant, Somaghi, as to whether s.6A of the Migration Act 1958 ("the Act") applies because it is common ground that he entered Australia so that the prohibitions contained in s.6A on the grant of an entry permit under s.6 apply."
It was accepted on both sides that there was no material difference between the two cases for the purpose of considering whether or not the Minister should be restrained from executing the deportation order pending the hearing and determination of the appeal. Accordingly, for the reasons indicated in respect of Heshmati's application, I make similar orders to those made on that application.
- AGLC
- Somaghi, R.A.B. v. Minister for Immigration, Local Government & Ethnic Affairs [1990] FCA 736
- Case
- [1990] FCA 736
- Decision Date
CaseChat Overview and Summary
The court had to determine whether to grant a stay of the deportation proceedings pending the appeal. This decision hinged on whether there were substantial grounds for the appeal and whether the applicant would suffer irreparable harm if the stay was not granted. The case was closely related to another appeal, Heshmati v Minister for Immigration, Local Government and Ethnic Affairs, which had been heard immediately prior to this matter. Both cases involved similar factual and legal considerations, particularly concerning the application of section 6A of the Migration Act 1958.
The court found that there were substantial grounds for the appeal and that the applicant would suffer irreparable harm if the deportation were to proceed before the appeal was determined. The court noted that the appeal in the Heshmati case had already been considered, and similar orders were appropriate in this case. Ryan J. therefore made orders staying the deportation proceedings pending the determination of the appeal, and granting leave to appeal with no order as to costs.
The final orders of the court included a stay of all proceedings to remove the applicant from Australia pending the hearing and determination of the appeal, and granting leave to appeal with no order as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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