Interpreting s 473CB(1)(b)

Federal Court. Under s 473CB(1)(b), the Secretary must give the IAA "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"? If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgement in SZMTA?

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

Question 1: Under s 473CB(b) of the Migration Act 1958 (Cth), the Secretary must give the Immigration Assessment Authority (IAA) "material provided by the referred applicant to the person making the decision before the decision was made". If a protection visa applicant provided material to a delegate but another delegate refused to grant the visa, can it be said that the material was not given "to the person making the decision"?

Question 2: If the material was given to a delegate by the applicant's representative, can it be said that it was not given by the "referred applicant"?

Question 3: Does a judicial review applicant bear the onus of establishing that an error, had it not been made, could have led to a different outcome? Or, on the contrary, can it be said that, if it is not possible to say whether or not the absence of the error could have made a difference to the outcome, it follows that the error was material?

The FCA answered those questions as follows:

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