Federal Court (Full Court). The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Direction 90 commenced on 15 April 2021. Direction 99 was signed by the Minister on 23 January 2023, para 2 of which stated that it commenced on 3 March 2023 and by para 3 provided that Direction 90 “is revoked with effect from the date this Direction commences.” The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?
Question 2: Does the verb “give” in s 499(1) of the Migration Act 1958 (Cth) mean “to issue”?
Question 3: In Trout: at the time of the delegate's decision under s 501CA(4) of the Migration Act 1958 (Cth), the delegate was bound to comply with Direction 79; by the time of the Tribunal's decision on review, Direction 79 had been replaced by Direction 90; it was held that the applicant did not have an accrued right according to which the Tribunal was bound by Direction 79. Was Trout correctly decided?
The FCAFC answered those questions as follows: