Federal Circuit and Family Court. Did the Tribunal’s unattributed copying from the delegate’s reasons, combined with other factors, lead to the conclusion that it failed to bring its own independent mind to the merits of the review? If so, is that a type of error that is material by definition?
At [62] and [77] of its judgment, Federal Circuit and Family Court (FCFC) provided two tables comparing: on the left column, the Tribunal’s wording; on the right column, the delegate’s wording.
For instance, those tables included the following passages (modified emphasis):
|
“Tribunal Decision |
“Delegate’s Decision Record |
|
… the applicant has demonstrated above that the presence of immediate family members acts as a strong incentive to remain in Australia. As such, this may affect their intention to reside in Australia temporarily. |
… the applicant has demonstrated above that the presence of immediate family members acts as a strong incentive to remain in Australia which may affect their intention to reside in Australia temporarily. |
|
34. The Tribunal finds it most difficult to reconcile the applicant’s extensive proposed stay onshore with her claim she is a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia notwithstanding the applicant’s regular departure offshore suggests the applicant’s potential circumstances in Australia outweigh any incentive she has to depart.” |
I find it difficult to reconcile the applicant's extensive proposed stay onshore with their claim they are a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia notwithstanding the applicant's regular departures offshore suggests the applicant’s potential circumstances in Australia outweigh any incentive they have to depart.” |
Some of the questions to the FCFC were as follows:
Question 1: Did the Tribunal’s unattributed copying from the delegate’s reasons, combined with other factors, lead to the conclusion that it failed to bring its own independent mind to the merits of the review?
Question 2: If the answer to Question 1 is 'yes', is that a kind of error of the same character as that discussed by the plurality of the High Court in LPDT at [6], in the sense that it is an error that is material by definition?
The FCA answered those questions as follows: