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Full Court of the Federal Court confirms obligation on AAT to warn of applicant’s right to claim privilege

Luke Livingston and Philip Santucci recently appeared for the appellant in BWO19 v Minister for Immigration [2020] FCAFC 181 where the Full Court of the Federal Court held that the AAT is required to warn an applicant for review under the Migration Act 1958 (Cth) of his right to claim privilege when answering a question asked by the AAT.

The Full Court was required to consider a divergence of opinion in an earlier decision of the Full Court in SZHWY v Minister for Immigration (2007) 159 FCR 1.

In holding that the AAT was required to warn an applicant, the Full Court explained at [106]:

The preferable view requires a tribunal to advise an applicant of his or her entitlement to maintain the privilege. An applicant might then decide to waive the privilege, but that will be a matter for the applicant. A tribunal that proceeds to exercise its inquisitorial power without affording an applicant the opportunity to claim privilege commits jurisdictional error, provided that the error is material.

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