Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884

FEDERAL COURT OF AUSTRALIA

Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884

MIGRATION – appeal from Judge of Court to Full Court – whether primary judge erred in dismissing applications for review of RRT's decisions – where Migration Act 1958 (Cth) ss 424A-424C creates procedure for RRT to invite applicant to comment where it has possession of particular information – where Migration Act 1958 (Cth) s 425(1) as retrospectively amended obliges RRT to invite applicant to appear before it to give evidence and present arguments relating to issues arising in relation to decision under review – where primary Judge decided Migration Act 1958 (Cth) s 425(1) does not oblige RRT to invite applicant for second time where after first time RRT comes into possession of information manifesting additional issues – where primary Judge so decided because he considered himself bound by Full Court decision. PRECEDENT – whether primary Judge erred in considering himself so bound – whether open to primary Judge to refuse to follow Full Court decision because given per incuriam – whether Full Court decision's rationes decidendi included above interpretation of Migration Act 1958 (Cth) s 425(1) – whether Full Court decision distinguishable – whether present Full Court should decline to follow earlier Full Court decision – whether earlier Full Court decision plainly or patently wrong or has produced unintended and perhaps irrational consequences not foreseen by earlier Full Court when construing provision – whether open to present Full Court to conclude earlier Full Court decision so where High Court in dismissing application for special leave to appeal from earlier Full Court decision stated decision plainly right. Migration Act 1958 (Cth) ss 423(1), 424A, 424B, 424C, 425, 426(3), 427(6), 428(5), 476(1)(a) Migration Legislation Amendment Act (No. 1) 1998 (Cth) ss 2, 3, Sch 3, items 3, 20(1) High Court Rules 1952 (Cth) O 69A r 4(2) Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 followed Minister for Immigration & Multicultural Affairs v Cho (1999) 92 FCR 315 referred to Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 referred to De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 referred to Foster v Northern Territory of Australia [1999] FCA 1235 followed Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 referred to Cassell & Co Ltd v Broome [1972] AC 1027 referred to Baker v The Queen [1976] AC 774 referred to H C Sleigh Ltd v South Australia (1977) 136 CLR 475 referred to Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95 followed Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 followed Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 followed North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 referred to Bird v Colonial Spark Plugs Pty Ltd (1942) 66 CLR 43 referred to Ex p Zietsch; Re Craig (1944) 44 SR (NSW) 360 referred to Mason, "The Use and Abuse of Precedent", (1988) 4 Aust Bar Rev 93 SABRINA TAMARIS ALGAMA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 352 of 2001 RAJITHA SANTHUSH ALGAMA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 353 of 2001 FRENCH, WHITLAM & KATZ JJ SYDNEY (HEARD IN MELBOURNE) 24 DECEMBER 2001