Federal Court. In what circumstances can courts admit evidence adduced on judicial review? If the Tribunal is exercising the merits review jurisdiction conferred on it by s 500(1)(ba) of the Migration Act 1958 (Cth) in respect of a decision under s 501CA(4) made by a delegate of the Minister, does s 43 of the AAT Act invest for that purpose the Tribunal with all of the powers, discretions and statutory obligations of the delegate?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In order to determine whether evidence on judicial review is relevant and thus admissible, can it be said that "facts will be at issue in a judicial review proceeding if they are made so by a permissible ground of jurisdictional error"?
Question 2: Will the metes and bounds of evidentiary admissibility in respect of jurisdictional errors apart from bias or some failure of translation necessarily be "dictated by the text of the provision empowering the making of the decision under judicial review"?
Question 3: If the Tribunal is exercising the merits review jurisdiction conferred on it by s 500(1)(ba) of the Migration Act 1958 (Cth) in respect of a decision under s 501CA(4) made by a delegate of the Minister, does s 43 of the AAT invest for that purpose the Tribunal with all of the powers, discretions and statutory obligations of the delegate?
Question 4: In reaching its own state of satisfaction concerning s 501CA(4), was the Tribunal in any way constrained by the earlier view of the Minister’s delegate?
Question 5: In what circumstances will a court admit the adducing of evidence not before the administrative decision-makers?
Question 6: Can it be said that, "in considering afresh whether it was, for the purposes of s 501CA(4)(b)(ii) of the Act, satisfied that there was “another reason” to revoke the cancellation of the applicant’s visa, the Tribunal was constrained by s 499 of the Act to take into account factors set out by the Minister in Direction 79"?
Question 7: Do Bott nor SZMDS preclude "absolutely a conclusion of jurisdictional error grounded in evidentiary preferences or credibility findings based on false factual premises in the material before an administrative decision-maker such as the Tribunal"?
The FCA answered those questions as follows:
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