Federal Court (Full Court): Can the rules of procedural fairness require "special steps or procedure" to be followed in particular circumstances? Could it be said that "there may be sufficient material in a particular case so as to put the AAT on notice that the review applicant did not, or might not, have [the capacity to give evidence]", thus requiring the AAT to take the "special step" of inquiring about capacity? Was this case one of those particular cases?
Summary
The Appellant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). The Appellant made representations seeking revocation of that cancellation pursuant to s 501CA, but the Department decided not to revoke the cancellation.
The Appellant then applied to the AAT for merits review of the non-revocation decision. The Appellant, who "suffered from various mental health issues", was self-represented at the AAT. "[T]here was neither any evidence, nor any suggestion by the appellant, before the AAT that he suffered from any particular ailment which impacted on his competency or capacity to participate in the proceeding".
The AAT affirmed the non-revocation, after which the Appellant "appealed" the AAT's decision to the Federal Court (FCA).
A single judge of the FCA dismissed the "appeal" and the Appellant eventually appealed the FCA's decision to the Full Court of the FCA (FCAFC).
The questions to the FCAFC were as follows:
Question 1: Can the rules of procedural fairness require "special steps or procedure" to be followed in particular circumstances?
Question 2: Could it be said that "there may be sufficient material in a particular case so as to put the AAT on notice that the review applicant did not, or might not, have [the capacity to give evidence]", thus requiring the AAT to take the "special step" of inquiring about capacity?
Question 3: If the answer to Question 2 is "yes", was the present case one of those particular cases?
The FCAFC answered as follows: