Federal Court (Full Court). FCA had said: "The Tribunal’s reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation". Did FCA engage in merits review by saying that mandatory considerations under s 501CA(4) which AAT had ignored "were not sufficient to outweigh those matters" and that AAT's error was thus immaterial? Does the materiality test threshold vary from statute to statute? Does the content of the materiality test expounded in SZMTA apply only to denial of procedural fairness? Does the materiality threshold vary according to the type of decision within the Migration Act? Is the threshold for determining materiality that there must be a possibility of a successful outcome that is more than 'infinitesimal'? Was it necessary, in order to establish the materiality of AAT's error, for Appellant to demonstrate by evidence what he would have done had error not been made?
The questions to the Full Court of Federal Court (FCAFC) were as follows:
Question 1: Did the Federal Court engage in merits review by saying that mandatory considerations under s 501CA(4) of the Migration Act 1958 (Cth) which the Tribunal had ignored "were not sufficient to outweigh those matters" and that the Tribunal's error was thus immaterial?
Question 2: Does the materiality test threshold vary from statute to statute?
Question 3: Does the content of the materiality test expounded in SZMTA apply only to denial of procedural fairness?
Question 4: Does the materiality threshold vary according to the type of decision within the Migration Act 1958 (Cth)?
Question 5: Is the threshold for determining materiality that there must be a possibility of a successful outcome that is more than 'infinitesimal'?
Question 6: Was it necessary, in order to establish the materiality of the Tribunal's error, for the Appellant to demonstrate by evidence what he would have done had the relevant error not been made?
The FCAFC answered those questions as follows: