Federal Court: s 425 required AAT to invite Appellant to appear before it to "give evidence and present arguments relating to the issues arising in relation to the decision under review". AAT invited Appellant to a hearing in relation to the review of the delegate's decision to refuse him a protection visa. At the hearing, AAT put it to Appellant that there was a trend after 2013 of reduction of violence in the Appellant's country, based on some reports. Appellant had opportunity to comment. AAT's decision record relied on a subsequent report (2016 DFAT report) which confirmed that trend, but of which Appellant was not put on notice. Was the 2016 DFAT report an "issue" arising in relation to the decision under review or was it merely a factual matter going to that issue? Should AAT have convened a second hearing?
The questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "while s 424A(3) of the Migration Act provides (in effect) that country information need not be provided to an applicant, s 425 prevails over the operation of s 424A, as found in ABV16"?
Question 2: Did the 2016 DFAT report raise a new issue so as to engage the Minister’s obligations under s 425 or was it actually a factual matter going to an existing issue already addressed by the Appellant?
Question 3: Was s 425 a "code"?
Question 4: If s 425 was a "code" and the 2016 DFAT report was a factual matter going to an existing issue already addressed by the Appellant, was the Tribunal "obliged to give ANH16 an opportunity to comment on the 2016 DFAT report before making a decision"?
The Federal Court answered those questions as follows: