Federal Court (Full Court). Was it open to the non-citizen to "impugn the substantive determination [under s 430] on the ground that the Tribunal’s procedural decision [under s 426A(1A)(a)] affected the legality of the substantive determination by rendering the determination the product of a legally unreasonable process"?
In circumstances where the non-citizen (First Respondent) failed to attend a Tribunal hearing to which he had been invited, the Full Court of the Federal Court (FCAFC) said as follows in relation to the available courses under the Migration Act 1958 (Cth):
13 The first respondent failed to appear before the Tribunal at the hearing. In that event, the Migration Act authorised the Tribunal to take one of three potential courses –
(a) to reschedule or adjourn the review (s 426A(2) or s 427(1)(b));
(b) to make a determination on the review by written statement under s 430 of the Act without taking any action to allow or enable the first respondent to appear before it (s 426A(1A)(a)); or
(c) to dismiss the application without any further consideration of the application or information before the Tribunal (s 426A(1A)(b)).
Some of the questions to the FCAFC were as follows:
Question 1: Was it open to the non-citizen to "impugn the substantive determination [under s 430] on the ground that the Tribunal’s procedural decision [under s 426A(1A)(a)] affected the legality of the substantive determination by rendering the determination the product of a legally unreasonable process"?
Question 2: Is it open to an appellant to "allege error in the conclusion reached by the primary judge on an evaluative question to which there is only one correct answer without identifying any specific error of principle"?
The FCAFC answered those questions as follows: