Ozberk, Kemal v Minister for Immigration & Multicultural Affairs

[1998] FCA 903

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 36 of 1997

BETWEEN:	KEMAL OZBERK AND OTHERS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	EINFELD, SUNDBERG AND MERKEL JJ
DATE:	13 JULY 1998
PLACE:	MELBOURNE

EX‑TEMPORE REASONS FOR JUDGMENT

THE COURT

Leave to appeal should be refused on the ground that no important question of principle is involved in the application for leave.  There is no reason why the point the applicants wish to make in this Court, that is to say, that the fresh evidence is relevant to the questions of law raised by the application, cannot be made on the hearing of the application.  There is nothing in the judgment sought to be appealed from which is inconsistent with the principle that evidence which is relevant to a question of law before the court is admissible.  The respondent does not assert the contrary.

The primary judge’s reasons for judgment do not deal with that point, and therefore do not preclude the applicant seeking the admission of the evidence in question on the hearing of the substantive application on the basis of its relevance to alleged errors of law.  The appropriate course in a case such as this is that questions of relevance, which in the present case have never been decided, ought to be dealt with in the usual course at the hearing.  The procedure that has been adopted in the present case of having the admission of fresh evidence decided on a notion of motion before trial, and then appealing to the Full Court from an adverse decision on the motion, is unfortunate.  In all the circumstances we think the appropriate order as to costs is that they be costs in the cause.

I certify that this and the preceding one (1) page are a true copy of the Ex‑Tempore Reasons for Judgment herein of the Court

Associate:

Dated:            13 July 1998