In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, the Court observed:
[37] On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
See also SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; 226 FCR 68 at [15] per Flick J and Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [66] per Griffiths and Moshinsky J.