Federal Court (Full Court). A FCCA judge said in his reasons that he had relied extensively on the draft reasons made by another judge in preparing his judgment. Was lack of disclosure of draft reasons to Appellant contrary to procedural fairness rules? If so, should costs order below be reversed? Is a continued adulterous relationship determinative of whether definition of "spouse" in s 5F(2)(b) is satisfied? If not, is is at least an exclusionary factor? Is the absence of consent to adultery determinative of whether s 5F is satisfied? If not, is it at least a factor? AAT failed to reveal existence of invalid s 375A certificate containing dob in. Was that failure immaterial, as Appellant was aware of existence and gist of dob in through an FOI and did not make a s 362A request? Does materiality test require judicial review applicant to prove what they would have done had error not been made?
Some of the questions to the Full Court of Federal Court (FCAFC) were as follows:
Question 1: The Appellant's judicial review (JR) application was initially heard by Judge Wilson of the Federal Circuit Court (FCCA), who reserved his judgement. However, his Honour was appointed to the Family Court before giving judgement. The FCCA was then reconstituted by Judge Burchardt to hear JR application afresh. Was the lack of disclosure by Judge Burchardt of the draft reasons of Judge Wilson contrary to the rules of procedural fairness?
Question 2: If the answer to Question 1 is "yes", can it be said that any procedural unfairness which arose has been cured by way of the rehearing on this appeal to the Federal Court?
Question 3: If the answers to Questions 1 and 2 are both "yes", should the costs order below in favour of the Minister be reversed as "an appropriate way to recognise that each Judge should decide a case for themselves based on the materials and arguments put before them, and not on what some other judge has prepared in draft"?
Question 4: Is a continued or extensive adulterous relationship (including if there are children born by way of that adultery) determinative of whether the definition of spouse in s 5F(2)(b) of the Migration Act 1958 (Cth) is satisfied?
Question 5: Is adultery at least an exclusionary factor for the purposes of s 5F(2)(b)?
Question 6: Can it be said that, "while the absence of a visa applicant’s consent to admitted adultery may be a relevant factor in the assessment of whether s 5F has been satisfied, there is no indication in the statute that it is determinative of that matter"?
Question 7: The Tribunal failed to reveal existence of an invalid s 375A (non-disclosure) certificate which covered a dob in against the Appellant's relationship with the sponsor. Was the Tribunal's failure to reveal the existence of the s 375A certificate immaterial, on the basis that the Appellant was aware of existence of the dob in and the gist of its content through an FOI request?
Question 8: Was the Tribunal's failure to reveal the existence of the s 375A certificate immaterial, given that the basis for finding that the Appellant and her sponsor were not spouses as defined in the Act was unrelated to the content of the dob in?
Question 9: Does the onus of proving that the materiality test is satisfied, imposed on a judicial review applicant, entail proving what that applicant would have done, had the error not been made by the administrative decision-maker?
Question 10: The Tribunal failed to reveal existence of an invalid s 375A (non-disclosure) certificate which covered a dob in against the Appellant's relationship with the sponsor. Was the Tribunal's failure to reveal the existence of the s 375A certificate immaterial, on the basis that the Appellant could have, but did not, make a request for information under s 362A?
The FCAFC answered those questions as follows:
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