s 44A(2) of AAT Act: retrospective effect?

Federal Court. Does s 41(2) of the AAT Act authorise the making of an order after the AAT has made its decision? Is the subject of s 43(5C) the operation or implementation of the AAT's decision, instead of the decision under review by the AAT? Can it be said that "the power under s 44A(2)..., to make an order staying or otherwise affecting the operation or implementation of a decision the subject of an appeal to [FCA], should be construed so that it is [not] limited to a power that has prospective effect only", at least in circumstances where an "applicant has made a claim for final relief that the Tribunal’s decision be set aside ab initio"?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Does s 41(2) of the AAT Act, which authorises the AAT to order the stay of a decision under review, authorise the making of an order after the Tribunal has made its decision?

Question 2: Subsection 43(5C) of the AAT Act provides that, if AAT has made an order under s 41(2) which was in force immediately before its decision, then, unless AAT, FCA or FCCA otherwise orders, the operation or implementation of the AAT's decision is stayed. Is the subject of s 43(5C) the operation or implementation of the AAT's decision, instead of the decision under review?

Question 3: Can it be said that "the power under s 44A(2) of the AAT Act, to make an order staying or otherwise affecting the operation or implementation of a decision the subject of an appeal to this Court, should be construed so that it is [not] limited to a power that has prospective effect only", at least in circumstances where an "applicant has made a claim for final relief that the Tribunal’s decision be set aside ab initio"?

The FCA answered those questions as follows:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.

Previous articleConscious disregard of info, thus no apprehended subconscious bias?
Next articleMARA: “accepting instructions from an intermediary”