Federal Court. DHA cancelled visa under s 109. AAT relied on 37 documents given by a 3rd-party as evidence that Appellants were not stateless. Appellants unsuccessfully tried to obtain a copy of those documents through FOI, to the AAT's knowledge, and submitted to AAT they were not authentic and were given to exact revenge. Was AAT required under s 424A to provide Appellants with those documents or copies of them? Did AAT fail to provide a meaningful hearing under s 425?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Under s 140 of the Migration Act 1958 (Cth), if a person's (first person) visa is cancelled under s 109, a visa held by another person (second person) because of being a member of the family unit of the first person is also cancelled. If the first person's visa cancellation is set aside by the Tribunal, is the second person's visa restored?
Question 2: Did the requirement under s 424A for the Tribunal to give "clear particulars" of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review require the Tribunal to give the Appellants a those 37 documents (or a copy of them) so that they could challenge their authenticity?
Question 3: Although "some observations might be made on authenticity from having the list of the documents, the dates of issue and (for example) the names on the marriage certificate", can it be said that "these matters may in some circumstances say little about authenticity"?
Question 4: Where a delegate is given a "dob in" letter written in Mandarin Chinese (the applicant's first language) "which provides factual allegations inherently conclusive against the claims of the visa applicant", can it be said that, under s 424A, the "nuances of what is said by the informer may well require the Tribunal to show the visa applicant the letter in the original Mandarin Chinese, and not to simply summarise it in English"?
Question 5: Does breach of s 424A(1) constitute jurisdictional error?
Question 6: Should ss 424A and 425 be read and interpreted as intended to give effect to harmonious goals, insofar as that is possible?
Question 7: Does s 424A "exhaust the universe of the Tribunal’s obligation in s 425 to give a visa applicant a meaningful opportunity to “give evidence and present arguments”"?
Question 8: Can it be said that, as the Appellants did not have even a copy of those 37 documents and thus could not adequately challenge or test their authenticity, the hearing afforded to the Appellants failed to be meaningful and therefore did not comply with s 425?
Question 9: Did the fact that the Tribunal used its own examination of the documents in its reasoning reduce the meaningful nature of the hearing?
Question 10: Is it a "reasonable inference that, having been brought up and lived in Iran, [the Appellants] would be familiar with such documents and able to give direct evidence about them"?
Question 11: Is it a reasonable inference that the Appellants "would also have been able to secure an expert opinion from a document examiner"?
The FCA answered those questions as follows: