Behay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the Federal Court of Australia, Judge Egan considered a dispute between Behay (the applicant) and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) concerning a migration review application. The core of the disagreement revolved around whether the applicant had a right to withdraw their application for review before the Administrative Appeals Tribunal (AAT) following the enactment of section 24Z of the *Administrative Appeals Tribunal Act 1975* (Cth).

The legal issues before the Court were whether the enactment of section 24Z of the AAT Act abrogated the common law right of an applicant to withdraw their migration review application, and consequently, whether section 42A(1A) of the AAT Act, which permits such withdrawal, applied to proceedings in the Migration and Refugee Division. The applicant argued that section 24Z, by excluding most of Part 4 of the AAT Act from applying to the Migration and Refugee Division, effectively removed the right to withdraw.

The Court rejected the submission that section 24Z abrogated the common law right to withdraw. It was noted that section 24Z was enacted as part of a consolidation of various Acts of Parliament, with the stated purpose of centralising administrative decision-making. Applying the principle that courts lean against presuming that consolidating Acts alter the common law, particularly on matters affecting fundamental rights, the Court found no clear words in the amending legislation indicating an intention to abrogate this right. The Court acknowledged that the applicant's counsel conceded that, under the applicant's interpretation, the Tribunal would be compelled to review applications even if the applicant no longer wished to proceed, an outcome described as potentially onerous.

Ultimately, the Court dismissed the applicant's originating application for review and ordered the applicant to pay the respondent's costs.