Minister for Immigration and Border Protection v Guder [2018] FCA 626

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Guder [2018] FCA 626 Appeal from: Guder v Minister for Immigration and Border Protection [2017] FCCA 2527

File number: NSD 2091 of 2017

Judge: GRIFFITHS J

Date of judgment: 11 May 2018

Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the Administrative Appeals Tribunal (AAT) breached s 360 of the Migration Act 1958 (Cth) (the Act) by failing to provide a meaningful opportunity for the appellant to address whether she should be afforded more time within the period of three years prescribed by IMMI 15/028 to attempt to satisfy the English language proficiency requirements in clause 457.223(4)(eb) in Sch 2 to the Act – whether the primary judge misconstrued or misapplied the test for apprehended bias and thus erred in finding that the AAT committed jurisdictional error on the basis of a reasonable apprehension of bias – appeal dismissed, with costs

Legislation: Migration Act 1958 (Cth), ss 338, 347, 348, 349, 357A, 360 Migration Regulations 1994 (Cth), Sch 2 cl 457.223(4)(eb)

Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 O'Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510 Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; 165 CLR 642