Federal Court. The Appellant answered in the affirmative the following question contained in a form given to him by the Tribunal: "Do you and any other applicants consent to the Tribunal deciding the review without a hearing?" Was there ambiguity as to whether consent was given for the Tribunal to proceed without a hearing? Is it "contrary to the ‘spirit’ of the Migration Act [for the Tribunal] to ask an applicant if he or she consents to a review without an oral hearing"?
Under the drop box in which the answer was given, the following appeared:
Note: If you consent to us deciding your review without a hearing:
• We will make a decision on your application based on the information and evidence before us, and you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review. This means we may either affirm or set aside the decision under review. Please see our Information about Decisions fact sheet for more information about different types of decisions and what happens once we’ve made our decision.
• Please provide us with all the information you would like us to consider in deciding whether you meet the criteria for a student visa. We may make our decision at any time after the period for responding to this invitation has passed. You can upload additional information at the end of this form.
• If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was there ambiguity as to whether consent was given for the Tribunal to proceed without a hearing?
Question 2: Is it "contrary to the ‘spirit’ of the Migration Act [for the Tribunal] to ask an applicant if he or she consents to a review without an oral hearing"?
The FCA answered those questions as follows: