Federal Court (Full Court). In reviewing a decision made under s 501CA(4), did the Tribunal deny the appellant procedural fairness by failing to put him on notice of an adverse conclusion which was not obvious on the material, namely that the “best interests of the children consideration” might be a factor against him?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Does the Tribunal conduct a review of a delegate's decision, instead of a review of the delegate’s reasons for decision?
Question 2: Was the requirement under s 360(1) and s 425(1) of the Migration Act 1958 (Cth) to invite an applicant “to give evidence and present arguments in relation to the issues arising in relation to the decision under review” similar to the requirement under s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to ensure that an applicant is given a reasonable opportunity to present his/her case, at least in the circumstances of this case?
Question 3: Was it legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions?
Question 4: If the answer to Question 3 is 'yes', does it follow that the Tribunal could "permit the parties to place it in the position of deciding a case on an artificial or inadequate basis"?
Question 5: Are the issues before the Tribunal "framed by the statutory scheme, by the course of the anterior administrative decision-making process, and by the course of the proceeding on review"?
Question 6: If the answer to Question 5 is 'yes', is the content of what is required to ensure procedural fairness necessarily framed by those issues?
The FCAFC answered those questions as follows: