Federal Court. Can a failure by the IAA to accede to or respond to a request made by an applicant to provide submissions in excess of five pages constitute a denial of procedural fairness?
The Federal Court (FCA) said as follows:
5 The Delegate’s Decision was referred to the Authority pursuant to s 473CA of the Migration Act 1958 (Cth) (Act). A copy of the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients issued by the President of the Authority on 21 April 2016 pursuant to s 473FB of the Act (Practice Direction) was attached to a letter sent to the applicant notifying him of the referral. Paragraph 21 of the Practice Direction gave the following directions regarding the provision of written submissions and new information:
Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.
Some of the questions to the FCA were as follows:
Question 1: Is the issuance of the Practice Direction, "in particular insofar as it purports to limit written submissions to no more than five pages", inconsistent with ss 473DC or 473DD of the Migration Act 1958 (Cth)?
Question 2: Is the issuance of the Practice Direction "an unreasonable exercise of the President’s statutory power to issue directions pursuant to s 473FB"?
Question 3: Does Practice Direction "impact on the ability of the [IAA] to obtain further documents"?
Question 4: Does Practice Direction "inhibit an applicant in addressing the issues in his or her case"?
Question 5: Can it be said that "the five page limit applies to submissions, not any new information on which the applicant may seek to place before the Authority"?
Question 6: Can an applicant "seek permission to make a submission that was longer than five pages"?
Question 7: Can a failure by the IAA to accede to or respond to a request made by an applicant to provide submissions in excess of five pages constitute a denial of procedural fairness?
The FCA answered those questions as follows:
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