Applicant M185/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 109

FEDERAL COURT OF AUSTRALIA

Applicant M185/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 109 APPLICANT M185/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1407 OF 2004 MOORE, EMMETT AND GYLES JJ 20 MAY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1407 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT M185/2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, EMMETT AND GYLES JJ

DATE OF ORDER: 20 MAY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be adjourned and listed in the next Full Court callover, or otherwise fixed for further hearing. 2. The appellant pay the respondent's costs thrown away by the adjournment.

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 VID 1407 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT M185/2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, EMMETT AND GYLES JJ

DATE: 20 MAY 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT

MOORE j: 1 We propose to grant the adjournment. It will be on the basis that the appellant pay the respondent's cost thrown away by the adjournment. Gyles J will make some remarks on behalf of the Full Court.

GYLES j: 2 The application that has been made to adjourn the appeal in order that a further argument can be advanced is founded upon a statement by the trial judge in paragraph 14 of his judgment, as follows: 'If that [discounting the wife's evidence] is what the tribunal did, it would be unfair and therefore in error, unless the prosecutor was warned of the risk of not calling his wife.' (See Applicant M185 of 2003 v Minister of Immigration and Multicultural and Indigenous Affairs, V769 of 2003, unreported, Finkelstein J, 29 October 2004.) 3 It is submitted on behalf of the appellant that this is in fact what the Tribunal did, and that, as a consequence, the decision of the Tribunal was affected by a denial of natural justice. Counsel for the Minister has sought to persuade us that the proposition that the Tribunal did discount the wife's evidence in a way adverse to the appellant is quite hopeless and therefore the matter should not proceed further. Whilst, no doubt, there is weight in the arguments he advanced, the Court is not prepared to come to a view about that issue at this stage of the appeal. It is somewhat troubling that the appellant is not able to present to us a reasoned argument supported by authority that would back up the statement by his Honour. However, the fact that the judge did see fit to make that statement makes it difficult to suggest that the point is without any merit at all. 4 There is one serious problem in granting leave to have this matter argued, and that is the state of the record. All we have before us is what is called a supplementary appeal book which effectively consists of the Tribunal's decision and the decision of the primary judge. There is no other material of a substantive nature before us. In the course of the argument today, counsel for the Minister, who was at the trial, was able to tell us something of what occurred there. Reference to the file of the original proceedings does throw some light upon what occurred there, however, the record has not been able to be put together in any sort of orderly fashion. Quite how this came about is not clear to the members of the Court. The reason why there is a supplementary appeal book but no appeal book with a proper record does not appear to us. 5 This means that what appears to be a fairly narrow point cannot be properly considered without having a closer look at the record. We might add that a closer look at that record, for example the transcript of the proceedings before the Tribunal, may show the point to be of absolutely no merit at all. If there were a proper record, it would have been possible to give further and better consideration to the availability of the point on appeal. For these reasons the orders proposed by the presiding judge should be made.