Federal Court (Full Court). 1st Appellant applied for protection visa and added her children, 2nd and 3rd Appellants. Until and including AAT hearing, children had not made their own protection claims. They all attended the hearing in person. Practitioner also attended, but over the telephone, as his flight was delayed. Children were neither heard nor asked to be heard. 1st Appellant told AAT during hearing her children did not have their own protection claims and practitioner did not intervene to correct her. AAT asked for children to leave hearing room while 1st Appellant gave evidence, which they did. Practitioner did not object to that, but made post-hearing submissions including children's own protection claims. Can it be said that lack of objection and intervention meant that procedural fairness obligation in s 425 was not breached? If so, does that imply practitioners have a right to do so?
The questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: The practitioner's flight was delayed the day of the hearing, so he rang the Tribunal, asking for the hearing to be delayed by 1 hour, but the Tribunal refused to delay the hearing. Was it unreasonable of the Tribunal to decline to agree to the postponement request?
Question 2: Can it be said that lack of objection and intervention on the part of the practitioner meant that the procedural fairness obligation in s 425 was not breached by the Tribunal?
Question 3: If the answer to Question 2 is "yes", does that answer imply that practitioners have a "right" to attend Tribunal hearings and object and intervene when necessary?
Question 4: In answering Question 2 (i.e. whether or not the children were prevented from giving or communicating evidence), can it be said that there was no evidence before the Tribunal that the children had any evidence to give, with the result that it cannot be assumed that they had evidence to give?
Question 5: If the answer to Question 3 is "yes", can it be said that, if an error was made by the Tribunal in not hearing the children, the Appellants did not discharge their burden of proving to the FCAFC that the error was material and therefore jurisdictional, given that they did not adduce evidence in court of what type of evidence the children would have given to the Tribunal had they been heard?
Question 6: If the answer to Question 2 is "yes", would it nevertheless "have been both prudent and preferable for the Tribunal to have directly raised with [the practitioner] at the conclusion of the [First Appellant's husband's] evidence whether either of the children wanted to give evidence or listen to the submissions or simply re-enter the hearing room", particularly so given that [the practitioner], through no fault of his own, was only able to appear by telephone"?
The FCAFC answered those questions as follows: