Federal Court (Full Court). Can it be said that "a consequence of the non-provision of material such as an audio recording, created by a delegate through the delegate’s decision-making process, is whether the Secretary has complied with the duty imposed by s 473CB(1)"? Can it be said that, "where material such as the audio recording of a delegate interview is not given to the Authority, the question whether the Authority’s task has miscarried in a way which affects its jurisdiction is not decided by a technical focus on the words “possession or control” in [s 473CB(1)(c)], nor on evidence about why the material was not provided"?
The 3 appellants are relatives. Each of them made their own protection visa application, 2 of them arguing that their fear of persecution arose by reason of being a relative of the other appellant. A delegate refused the 3 visa applications and the same IAA member affirmed the 3 decisions.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that "the identification of jurisdictional error in the course of the sister’s review was capable of affecting the lawfulness of the Authority’s other two reviews, because of the interrelatedness of the three appellants’ claims"?
Question 2: On the issue of whether the FCAFC should grant the Appellants leave to rely on a new ground of judicial review not relied on in the court below, can it be said that, "as a regular litigant in this jurisdiction, well-resourced and represented by capable counsel, in the absence of any particular considerations of prejudice in a given case, and where reasonable notice has been given, the Minister is likely to be able to accommodate argument on a new ground, and any extra time or resources can be compensated with an order as to costs"?
Question 3: Can it be said that "a consequence of the non-provision of material such as an audio recording, created by a delegate through the delegate’s decision-making process, is whether the Secretary has complied with the duty imposed by s 473CB(1)"?
Question 4: Can it be said that, "where material such as the audio recording of a delegate interview is not given to the Authority, the question whether the Authority’s task has miscarried in a way which affects its jurisdiction is not decided by a technical focus on the words “possession or control” in [s 473CB(1)(c)], nor on evidence about why the material was not provided" and that the "key fact is that the material was not given to the Authority"?
The FCAFC answered those questions as follows: