Does s 376 prevent disclosure to independent expert?

Federal Court. Does a non-disclosure certificate issued under s 376 prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence? Does the materiality test apply to errors contained in reports made by independent experts?

The questions to the Federal Court (FCA) were as follows:

Question 1: Does a non-disclosure certificate issued under s 376 of the Migration Act 1958 (Cth) prevent decision-makers from referring the documents covered by the certificate to an independent expert under reg 1.23(13) for the purposes of a non-judicially determined claim of family violence?

Answer: No.

Question 2: Will a decision "be vitiated by jurisdictional error if it takes an independent expert’s opinion about whether an alleged victim suffered relevant family violence to be correct if that opinion was not one which was formed in accordance with law"?

Answer: Yes.

Question 3: Can it be said that "the opinion of an independent expert that excludes from consideration a claim or claims of family violence on the basis of a misunderstanding of the law or the relevant statutory question is not an opinion formed in accordance with law"?

Answer: Yes.

Question 4: Does the materiality test apply to errors contained in reports made by independent experts?

Answer: Yes.

The FCA answered those questions as follows:

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