Federal Court. Can it be said that the obligation under s 360 of the Migration Act 1958 (Cth) to invite an applicant to a hearing does not operate on a “once and for all” basis, in that, if a new issue arises after a Tribunal hearing, a further hearing must be convened? Are issues which emerge during a hearing also subject to the obligation imposed by s 360?
Section 360 of the Migration Act 1958 (Cth) provided that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that the obligation under s 360 to invite an applicant to a hearing does not operate on a “once and for all” basis, in that, if a new issue arises after a Tribunal hearing, a further hearing must be convened?
Question 2: Are issues which emerge during a hearing also subject to the obligation imposed by s 360?
Question 3: Is it incumbent on the Tribunal to put the appellant on notice of issues that arise directly from the governing legislation?
Question 4: Can it be said that, "unless the Tribunal alerts an applicant to a basis upon which the Tribunal is unpersuaded that does not appear from the delegate’s decision, the applicant will be none the wiser and practically unable to address it"?
The FCA answered those questions as follows: