Editors --- "Browne v Minister for Immigration and Multicultural Affairs - Case Note" [1999] AdminRw 20; (1999) 51 Admin Review 50

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Browne v Minister for Immigration and Multicultural Affairs

Federal Court, Wilcox J, 29 May 1998

[1998] FCA 566

Consequences of the AAT failing to take into account an international Convention—whether forming a relationship after deportation order is an abuse of process

The Minister had signed a deportation order against the applicant. The applicant had then developed a relationship with an Australian woman, and had a child with her. The applicant applied to the Administrative Appeals Tribunal ('AAT') for a review of the deportation order on the basis of his changed situation. The application for review, however, fell outside the time specified for applications. The AAT refused to extend the time limit on the ground that to do so would encourage an abuse of process by suggesting that establishing a relationship could displace a decision to deport.

The applicant applied to the Federal Court for review of the decision, on the ground that the AAT failed to take into account the interests of his child - which it was obliged to do in light of Australia's ratification of the Convention on the Rights of the Child ('Convention'). The applicant also contested the correctness of treating his application for a time extension as an abuse of process.

Justice Wilcox held that the AAT was obliged to apply the terms of the Convention as a matter of substantive law, and by not doing so it had failed to take into account a relevant consideration. He also held that it was erroneous for the AAT to direct itself that the formation of the relationship was directed at abusing the right to seek a time extension.