Tribunal taken to have complied with s 359A by default?

Federal Court: AAT failed to disclose a document containing adverse information and its existence. That document was not protected by a non-disclosure certificate. Non-disclosure constituted a breach of procedural fairness. Was that breach material to the decision? Can it be inferred from s 359A and from the lack of reference in the Tribunal's decision record to that document that its non-disclosure was not material to the decision? Does the copying by an AAT member of the reasons of a prior member necessarily mean jurisdictional error?

Summary and discussion

The Minister refused to grant the Appellant a partner visa and the Appellant applied to the AAT for merits review of the Minister's decision.

The Tribunal received a document from the Minister which contained information adverse to the Appellant. Neither the existence nor the content of that document was disclosed to the Appellant. The Minister was meant to provide the Tribunal with a non-disclosure certificate, but did not do so as the result of an internal error.

The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision. The FCCA dismissed that application and the Appellant appealed the FCCA's decision to the Federal Court (FCA).

The FCA referred to the above-mentioned document as the "Allegation document".

At the FCA, it was not in dispute that the non-disclosure of the Allegation document constituted a breach of procedural fairness. What was in dispute was whether or not that breach was material to the Tribunal's decision. That breach would only be a jurisdictional error if it was material.

Counsel representing the Appellant at the FCA made an application for the disclosure of the Allegation document for the purposes of the appeal, but the Minister refused to do so and claimed public interest immunity.

Counsel for the Appellant then made the forensic choice of not proceeding with the disclosure application, for reasons not discussed by the FCA and thus unknown to the writer. As a result, the Allegation document was not received into evidence on the appeal.

The questions to the FCA were as follows:

Question 1: could it be argued that 'the failure by the Tribunal to provide the Allegation document to the appellant was justified because it was the subject of public interest immunity'? That was not argued at all, which means this was a hypothetical question and its answer is obiter dicta (i.e. not a binding precedent).

Question 2: given that the Tribunal was required under s 359A to give to the Appellant the reasons why it was inclined to affirm the Minister's reasons and assuming that any such reasons, if given, would be material to the Tribunal decision, can it be inferred that the lack of any reference in the Tribunal decision to the Allegation document meant that such a document was not material to that decision?

Question 3: this matter actually involved circumstances where the Appellant had succeeded in a judicial review application against a decision of an AAT member (the first member) and another member (the second member) subsequently made a fresh decision. The Appellant claimed that the second member's written reasons "substantially or materially copied the reasons of the first Tribunal decision", with the result that the second member failed to make its own findings. Does the copying of part (not all) of the reasons necessarily mean that the member making the copy has failed to make its own findings?

The FCA answered as follows...

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