Gomes v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCAFC 100

FEDERAL COURT OF AUSTRALIA

Gomes v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 100

GABRIAL PATRICK GOMES v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1197 of 2002

BRANSON, MADGWICK & ALLSOP JJ
9 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1197 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GABRIAL PATRICK GOMES APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON, MADGWICK & ALLSOP JJ
DATE OF ORDER:	9 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed and the orders of the primary judge set aside.

2.The matter be remitted to the primary judge for hearing.

3.The respondent pay the applicant’s costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1197 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GABRIAL PATRICK GOMES APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON, MADGWICK & ALLSOP JJ
DATE:	9 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. The appeal to this Court is against a dismissal by the learned primary judge of an application to the Court following the filing by the respondent of a notice of objection to competency.  It is now conceded on behalf of the respondent that the application to the court was competent.  A decision of the High Court touching on this issue has been published since the learned primary judge’s order was made.

2. The respondent nonetheless invites the Court to dismiss the appeal on the basis that the application itself is patently without merit.  No application has at any time been made to the Court for the summary dismissal of the application on the ground that it discloses no reasonable basis.

3. The application is brought in an area of the Court’s jurisdiction where leave to institute a proceeding is not required.  That is, there is ordinarily no impediment in the way of an applicant approaching the Court for a review of a decision of a tribunal even though the application itself may be without merit.  In our view, the appropriate place for the merits of this application to be considered is before the primary judge. 

4. The appropriate orders, in our view, are as follows:

   1.The appeal be allowed and the orders of the primary judge set aside.

   2.The matter be remitted to the primary judge for hearing.

   3.The respondent pay the applicant’s costs of the appeal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            21 May 2003

Counsel for the Applicant:	Mr T Reilly
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 May 2003
Date of Judgment:	9 May 2003