Omar, Omar Ahmed v Minister for Immigration and Multicultural Affairs

[1998] FCA 1554

FEDERAL COURT OF AUSTRALIA

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

OMAR AHMED OMAR

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:

FRENCH, NICHOLSON AND FINKELSTEIN JJ

DATE OF ORDER:

12 NOVEMBER 1998

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the costs of the appeal and reserved costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

OMAR AHMED OMAR

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:	FRENCH, NICHOLSON AND FINKELSTEIN JJ
DATE:	12 NOVEMBER 1998
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

FRENCH J:

This is a motion by the respondent for the dismissal of an appeal to the Full Court of the Federal Court against a decision of Sundberg J which was given on 11 December 1997. In that decision Sundberg J dismissed an appeal from a decision of a Deputy President of the Administrative Appeals Tribunal which in turn had dismissed an application for review of an order for the deportation of the appellant under s 200 of the Migration Act 1958 (Cth).

The matter has been the subject of consideration by a Full Court and another Judge of this Court in relation to an application for a stay order on deportation pending the hearing of the appeal against the decision of Sundberg J.  An application for a stay order was dismissed by Marshall J and subsequently an appeal against Marshall J’s order was dismissed on 28 January this year by a Full Court comprising Black CJ, North and Finkelstein JJ.

In the event the appellant was deported to Lebanon on 1 February 1998.  That left on foot his notice of appeal against the decision of Sundberg J.  That notice of appeal, which is dated 11 December 1997, specifies as the grounds of appeal the following:

“The right of the child, the human right, length of time in prison, oral speech by the applicant and other support statements.”

Reference to the grounds so stated is sufficient to indicate that they do not disclose an intelligible basis for an appeal against the decision of Sundberg J.  However, the practical question which is now before the Court arises from the fact that the appellant has been deported, is in Lebanon, has no legal representation and, notwithstanding an order for substituted service of the notice of motion in this case and communication with his brother who is in Australia, has made no attempt to communicate with the Court in relation to the prosecution of the appeal.  The indications are, on the basis of conversations between representatives of the respondent and his brother, that there is no prospect of this appeal being prosecuted on the day for which it has been set down or at all and that is not surprising given the views already expressed by the Full Court and Marshall J in relation to the application for a stay order pending the appeal against Sundberg J’s decision.

In the event it would be, in my opinion, a waste of Court time and resources to retain time allocated for this appeal in the forthcoming sittings in Melbourne and without, in fact, having to refer to any specific provision of the Rules, I am satisfied that under the implied incidental power of the Court this appeal should be dismissed.

The appeal will be dismissed with an order for costs and reserved costs against the appellant.

Nicholson J

I am of the same opinion.

Finkelstein J
I also agree that the appeal should be dismissed for the reasons given by the learned Presiding Judge.

I certify that this and the preceding two (2) pages are a true copy of the Ex tempore Reasons for Judgment herein of the Court.

Associate:

Dated:             12 November 1998

Counsel for the Appellant:	No appearance
Counsel for the Respondent:	Ms J. Ellis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 November 1998
Date of Judgment:	12 November 1998