Federal Court: Applicant applied to AAT for review of non-revocation of visa cancellation. Hearing was scheduled for 2 weeks before 84-day deadline. Under ss 500(6H)/(6J), AAT could not accept evidence provided in support of Applicant's case unless it had been provided in writing to Minister and AAT at least 2 business days before hearing. Applicant's partner sent AAT an email with declaration in support of his case just a few minutes before hearing. At hearing, AAT said it was precluded by law from considering partner's declaration, but did not refer to the possibility of an adjournment, for which Applicant did not apply. AAT affirmed non-revocation and its decision record gave reasons for refusal to adjourn, including s 500(6H) and 84-day deadline. Did AAT make a jurisdictional error? With respect, it appears this FCA decision is contradicted by previous decisions of the Full Court and High Court.
The questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "500(6H) and 500(6J) only apply to material sought to be adduced to support an applicant’s case, not material to be used in cross-examination"?
Question 2: Can an adjournment "overcome the requirement of s 500(6H) that information can only be presented by an applicant to the Minister in writing at least two days before a hearing"?
Question 3: Should the FCA disbelieve what the Tribunal said in its reasons and rely instead on the hearing transcript for finding that "the Tribunal was not conscious or aware of its power to adjourn the hearing"?
Question 4: Is the "time constraint imposed by s 500(6L) of the Migration Act ... part of the statutory context that must be borne in mind in considering what procedural fairness required in the circumstances of the case"?
Question 5: "taking into account that this was a review which was subject to the time limits in s 500(6L), was the applicant, as a practical matter, denied a reasonable opportunity to present his case by the Tribunal not adjourning the review for at least two days so that the material submitted by Partner B could be taken into consideration"?
Question 6: May there be "exceptional circumstances where a matter arises during a review (whether at the review hearing or otherwise) which does indeed mean a review applicant cannot be given a meaningful and reasonable opportunity to be heard without some kind of adjournment of the review, even within the tight time frames for which s 500(6L) provides, [where the Tribunal may] have to compromise some of its other review work to secure that fairness to a particular visa applicant"?
Question 7: Could the Tribunal could have issued a decision without reasons without breaching s 43(2) of the AAT Act?
Question 8: Can it "be said that any Tribunal acting reasonably would inevitably have adjourned the review hearing"?
Question 9: Can it be said that, if there was a denial of procedural fairness to the applicant, the question of materiality involved determining "what effect the subject-matter of the documents [the partner] provided was likely to have had on the Tribunal’s reasoning process and its opinions about the correct or preferable decision on the review"?
Question 10: Is the materiality test expounded in Hossain and SZMTA binary or a balancing exercise?
Question 11: Can it really be said that "the extra step of a materiality assessment has a role to play in determining if a finding of legal unreasonableness goes to the jurisdiction of the Tribunal"?
The FCA answered those questions as follows:
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