Federal Court. If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?
Section 427(1)(a) of the Migration Act 1958 (Cth) provided as follows: "For the purpose of the review of a decision, the Tribunal may ... take evidence on oath or affirmation".
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Must the statutory discretion in s 427(1)(a) be exercised reasonably?
Question 2: Did the discretion and power s 427(1)(a) exist to facilitate the Tribunal giving effect to its obligation to conduct a review of a Part 7 reviewable decision under s 414?
Question 3: If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as giving insufficient weight to the Appellant's wish for the witness to present oral evidence?
Question 4: If the Tribunal's decision not to call a witness put forward by the Appellant was affected by jurisdictional error in that it lacked an evident and intelligible justification, could that error also be identified as a failure to take into account a relevant consideration (that the witness' oral evidence may assist the Tribunal to determine the Appellant's claim to be a refugee)?
The FCA answered those questions as follows: