Federal Court. Are the procedural fairness duties affected by whether a Tribunal applicant is represented? Is the duty to consider claims not clearly articulated, but which arise tolerably clearly from the material before the Tribunal, affected by whether a Tribunal applicant is represented? Was reliance on ss 36(2)(b) or (c) tolerably clear? Are those 2 provisions a 'time of decision' requirement?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Given the Tribunal's inquisitorial nature, can it be said that the procedural fairness duties are affected by whether a review applicant is represented, but that the duty to consider claims that arise from the material is not?
Question 2: If the answer to Question 1 is "yes", is the existence of representation nevertheless relevant to whether objectively it was tolerably clear that certain facts were being put before the Tribunal?
Question 3: The Appellant applied for protection visa and made claims that he was entitled to protection. He also mentioned that his father had been granted a protection visa in Australia, although he did not expressly claim to be a member of the family unit of his father. Because of the reference to his father, was the Appellant's claim that he alternatively sought to satisfy s 36 of the Migration Act 1958 (Cth) on the basis of satisfaction of ss 36(2)(b) or (c) tolerably clear from the material before the Tribunal?
Question 4: Are ss 36(2)(b) or (c) a 'time of decision' requirement?
The FCA answered those questions as follows:
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