Federal Court. The AAT carried out a hearing and then invited the Appellant in writing to a second hearing, seeking to "provide [her] with an extended opportunity to address any concerns or issues arising from the evidence before it". The Appellant's RMA would be on maternity leave on the date proposed for the second hearing, so she requested another date. The AAT then cancelled the second hearing and sent a s 359A letter instead, setting out what would be the reason for affirming the delegate's decision and inviting comments. Was the AAT obliged to proceed with the second hearing?
The Tribunal described the relevant events as follows:
27. Following the review hearing on 27 March 2018, on 27 June 2018 the Tribunal sought to provide [the Appellant] with an extended opportunity to address any concerns or issues arising from the evidence before it. The Tribunal invited [the Appellant] to a second hearing scheduled for 19 July 2018.
28. On 27 June 2018 [the Appellant's] registered Migration Agent ... wrote to the Tribunal requesting that the Tribunal delay this second hearing of 19 July to a date not before mid-September 2018, on the basis that she was on maternity leave until then and was the only person in the practice who could represent [the Appellant], having had carriage of the matter since 4 February 2017. [The RMA] also specified three dates on which she would not be available in September 2018.
29. On 28 June the Tribunal responded to [the Appellant] stating that, having considered the request, [she] was referred to section 366A of the Act, which provides that an applicant is entitled to have a person assist them at the hearing but that, unless there are exceptional circumstances, the assistant is not entitled to present arguments or address the Tribunal. It noted that [the RMA] was not a sole practitioner and that it did not consider the circumstances exceptional. However in light of [the RMA's] carriage of the matter, the Tribunal said it would cancel the second hearing and put its concerns to [the Appellant] in written form under section 359A of the Act.
30. On 4 July 2018 the Tribunal wrote to [the Appellant], putting certain information that the Tribunal considered would, subject to [her] comments or response, be the reason or a part of the reason for affirming the decision under review...
The letter of 27 June 2018 stated:
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.
We have considered the material before us but we are unable to make a favourable decision on this information alone.
You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. We have arranged a hearing for...
The questions to the FCA were as follows:
Question 1: Can it be said that "it is not so much that s 360 ... requires the Tribunal to afford a fair hearing, but rather whether the process contemplated by [Part 5] has been duly administered or carried into effect"?
Question 2: Can it be said that, "[w]hen issuing an invitation under s 360(1), the Tribunal is not required to give advance notice to an applicant of the issues to which that hearing relates", all the more so "where those issues concern the applicant’s credibility"?
Question 3: Are the advantages offered by an invitation to a hearing made under s 360 of the Migration Act 1958 (Cth), such as the opportunity to have a face to face meeting with the person making the decision, also offered by an invitation under s 359A to comment on information?
Question 4: Can it be said that the "Tribunal’s letter of 27 June 2018 provided a clear indication that it considered the review process in respect of the delegate’s decision concerning [the Appellant's] application was incomplete"?
Question 5: If the answer to Question 4 is "yes", given the absence of any explanation by the Tribunal for its change of mind regarding the need for a second hearing, did the Tribunal fail to comply with its duty to complete the review process and thereby commit jurisdictional error?
Question 6: In answering Question 5, was the Appellant required to provide evidence to explain what she would have done had the Tribunal held the second hearing?
The FCA answered those questions as follows:
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