Kohli v Minister for Immigration and Border Protection [2018] FCA 540

FEDERAL COURT OF AUSTRALIA

Kohli v Minister for Immigration and Border Protection [2018] FCA 540 File number: NSD 1628 of 2017

Judge: FLICK J

Date of judgment: 19 April 2018

Catchwords: ADMINISTRATIVE LAW – application for review of decision of the Administrative Appeals Tribunal – consideration of duty of Tribunal to afford procedural fairness – where Respondent Minister supplied Applicant with significant volume of documentation the day before Tribunal hearing – where Tribunal made no enquires as to whether the Applicant had adequate time to consider material – whether the Applicant suffered practical or substantive unfairness ADMINISTRATIVE LAW – consideration of privilege against self-incrimination – where Applicant cross-examined before Administrative Appeals Tribunal on issues that could self-incriminate – where Tribunal gave no advice or caution that the Applicant had a right to refuse to answer question which could be self-incriminating – whether the Tribunal fell into jurisdiction error by failing to advise Applicant of his rights

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 39 Migration Act 1958 (Cth) s 501(3A)

Cases cited: Abram v Bank of New Zealand [1996] ATPR 41-507 Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 Griffin v Pantzer [2004] FCAFC 113, (2004) 137 FCR 209 Jones v Ekermawi [2009] NSWCA 388 Kioa v West (1985) 159 CLR 550 Lee v New South Wales Crime Commission [2013] HCA 39, (2013) 251 CLR 196 Re Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 Sullivan v Department of Transport (1978) 20 ALR 323 SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64, (2007) 159 FCR 1 Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171, (2012) 59 AAR 98 Titan v Babic (1994) 49 FCR 546 Tsiamis v Comcare [2013] FCA 684, (2013) 60 AAR 506