Federal Court (Full Court). Was the obligation under s 39(1) of the AAT Act to ensure procedural fairness higher than that provided by the common law? Must the content of a “reasonable opportunity” in s 39(1) of the AAT Act be construed in light of the terms of s 500(6L) of the Migration Act 1958 (Cth)?
Section 39(1) of the AAT Act provided that:
… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
The Federal Court (FCA) said as follows:
20 Section 501G(1) made provision for written notification of the delegate’s decision containing certain information (that was provided), with subsection (3) providing that notice under subsection (1) had to be given in the prescribed manner, in accordance with reg 2.55 of the Migration Regulations 1994 (Cth). In his written application to the Tribunal for merits review, the appellant stated that he had been notified of the delegate’s decision on 31 January 2020, the notice being dated 24 January 2020, and having been sent to him by registered mail. The Tribunal treated the actual date of receipt on 31 January 2020 as the date of notification, and calculated the 84 days from that date as expiring on Friday, 24 April 2020 ...
Some of the questions to the FCA were as follows:
Question 1: Was the obligation under s 39(1) of the AAT Act to ensure procedural fairness higher than that provided by the common law?
Question 2: Can it be said that "the Tribunal’s discharge of its obligation may well require it in certain circumstances to be proactive, to be flexible and to actively consider the circumstances of a review applicant"?
Question 3: Did s 500(6L) of the Migration Act 1958 (Cth) require a decision to be made within the 84-day time period, as distinct from expressing reasons for that decision?
Question 4: If the answer to Question 3 is 'yes', does that mean that "a decision could be made without the Tribunal having formed a view as to there being sufficient reasons for doing so, even if those reasons could be provided up to 56 days later as provided by s 43(2A)"?
Question 5: Must the content of a “reasonable opportunity” in s 39(1) of the AAT Act be construed in light of the terms of s 500(6L) of the Migration Act 1958 (Cth)?
Question 6: If the date of actual notification of a decision made under s 501(3A) of the Migration Act 1958 (Cth) precedes the date of deemed notification, does the 84-day deadline stipulated under s 500(6L) start to run from the date of actual notification?
Question 7: Will a decision-maker often use the process of writing reasons to arrive at a decision?
Question 8: Can it be said that, "ordinarily, a person in the appellant’s position appearing before the Tribunal at a hearing under s 39(1) of the AAT Act should have access reasonably in advance of that hearing to all material that is before the Tribunal"?
Question 9: Is Khalil authority for the proposition that the Tribunal is obliged in every case to meet the terms of s 39(1) by an adjournment in circumstances where documents were provided to an applicant for the first time at the Tribunal hearing?
Question 10: Is it "generally better that merits review applicants have an opportunity to inspect material before being asked questions about it, especially if the material has never been seen before"?
The FCA answered those questions as follows: