Federal Court. Does NAIS prescribe that the Tribunal will make a jurisdictional error, unless it acknowledges in its reasons the existence of a substantive delay between the hearing and its decision? Can it be said that, "whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), ... the Tribunal’s reasons are necessarily irrelevant to that consideration"? Once significant delay is established, does the evidentiary onus shift to the Minister?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the consultation of contemporaneous notes and tape recordings of the proceedings by the Tribunal a long time after a hearing was conducted "a satisfactory substitute for the observation and formation of impressions of persons in the flesh, and the timely personal commitment of these to paper as part of the process of making a decision in the light of the materials supplied to the Tribunal and all the arguments advanced to it"?
Question 2: Does NAIS prescribe that the Tribunal will make a jurisdictional error, unless it acknowledges in its reasons the existence of a substantive delay between the hearing and its decision?
Question 3: Can it be said that, "whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), ... the Tribunal’s reasons are necessarily irrelevant to that consideration"?
Question 4: Can it be said that, once significant delay between a Tribunal hearing and its decision is established, "the evidentiary onus shifts" to the Minister?
Question 5: Is the length of any delay "necessarily a relevant consideration in determining whether it is causative of error"?
The FCA answered those questions as follows: