Fattah v Minister for Home Affairs

In the Federal Court of Australia, Judge Baird considered an application by Dr. Fattah for an extension of time to seek review of a decision made by the Administrative Appeals Tribunal. The dispute concerned the cancellation of Dr. Fattah's subclass TY 444 (Special Category) visa, which the Tribunal determined was necessary due to the possibility of risk to the community. Dr. Fattah had been charged with offences and granted bail, and the Tribunal's decision was influenced by allegations of misconduct in Australia and a New Zealand Health Practitioners Tribunal (NZHPT) decision.

The court was required to determine several legal issues, including whether the Tribunal's decision was unreasonable or illogical, and whether the Tribunal had complied with sections 359A and 359AA of the *Migration Act 1958* (Cth) in its consideration of the NZHPT decision. Further questions arose regarding whether a Class TY Subclass 444 (Special Category) visa is a permanent visa, whether a notice issued under section 119 of the *Migration Act 1958* (Cth) was compliant, and whether there was any allegation of bias against the Tribunal. The court also had to consider whether the application for an extension of time was made without reasonable prospects of success.

Judge Baird reasoned that while the Tribunal had correctly noted the distinction between bail conditions and visa cancellation powers, it had given appropriate weight to the fact that Dr. Fattah had been granted bail. Regarding the NZHPT decision, the Tribunal stated it had not placed weight on the allegations in that decision when considering the risk to the community, basing its conclusion solely on allegations made in Australia. However, the Tribunal did not accept that the complaints in New Zealand were not of a sexual nature, finding similarities between those allegations and those made in Australia, despite the NZHPT's conclusion that there was insufficient evidence to substantiate the complaint. The court found that while there were some inaccuracies in the Tribunal's description of how it obtained and used the NZHPT decision, and Dr. Fattah's representative had limited time to review it, no jurisdictional errors were established.

Ultimately, the court extended the time for Dr. Fattah to make his application, pursuant to s.477(2) of the *Migration Act 1958* (Cth), up to and including 7 May 2018. Despite the extension of time, the application itself was dismissed, and Dr. Fattah was ordered to pay the First Respondent's costs fixed at $7,328.00.