“Best” evidence? Is this not merits review?

Federal Court (Full Court): Appellant applied for revocation of the mandatory cancelation of his visa, providing his wife's statutory declaration about his remorse and his own declaration to the same effect. The Minister ignored the Appellant's own declaration. Whether that amounted to jurisdictional error turned on whether the wife's declaration was the "best" evidence about the Appellant's remorse. With respect, did not the FCAFC inadvertently engage in impermissible merits review by answering for itself what the "best" evidence was?

Summary

The Appellant's visa was mandatorily cancelled pursuant to 501(3A) of the Migration Act 1958 (Cth). The appellant sought revocation of that cancellation pursuant to s 501CA.

To oversimplify the Appellant's submissions in support of revocation, he provided a statutory declaration from his wife, where she claimed that the Appellant had remorse for the offences that led to his visa being cancelled. He also provided a statutory declaration signed by himself to the same effect.

The Minister refused to revoke the cancellation. In his decision record, the Minister made reference to the wife's declaration, but not the Appellant's.

The Appellant applied to the Federal Court (FCA) for judicial review of the non-revocation decision, but the FCA dismissed that application.

The Appellant eventually appealed the FCA's decision to the FCAFC.

The question to the FCAFC was whether the fact that the Minister had ignored the Appellant's own declaration amounted to jurisdictional error.

That question turned on whether the wife's declaration was the "best" evidence about the Appellant's remorse.

With respect, did not the FCAFC inadvertently engage in impermissible merits review by answering for itself what the "best" evidence was? In other terms, was not the weigh to be attributed to the evidence, or whether one piece of evidence is "better" than another, a matter for the Minister only?

Is it not the case that the impermissibility of merits review by a court is a "double-edged sword" in that applies to cases where merits review would benefit the Minister as much as it applies to cases where it would benefit a non-citizen?

Relevantly, the majority in SZMTA held as follows at [49] (emphasis added):

Whilst “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”, the task is not impossible and can be done in these appeals...

Arguably, the above emphasised passage is a warning against impermissible merits review on the part of a court.

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