Materiality test disguising merits review

Federal Court: The writer has voiced concerns in several articles about the fact that, sometimes, merits review is inadvertently disguised by the Minister as materiality test considerations. With respect, those concerns were finally echoed by a judge of the FCA. Further, can it be said that, as the Tribunal "is not bound by technicalities, legal forms or rules of evidence”, it cannot "decline to accept the tender by or on behalf of an applicant at a hearing of a document containing information capable of corroborating the basis of that applicant’s visa claim"?

The writer has voiced concerns in several articles, over several months, about the need to avoid merits review disguised as materiality test considerations.

The impermissibility of merits review in judicial review proceedings is a double-edged sword. It cannot be used in favour of a non-citizen, but it cannot be used in favour of the Minister either.

In short, the writer is of the opinion that the higher the Minister argues the materiality threshold to be, the more likely he/she is to inadvertently invite the courts to engage in impermissible merits review. Similarly, the writer is of the view that even if the Minister accepts the threshold to be low, the more he/she argues that the error necessarily made no difference to outcome, the more he/she invites the courts to step into the shoes of the administrative decision maker whose decision is challenged.

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

Question 1: In the context of a review under Pt 7 of the Migration Act 1958 (Cth), can it be said that, as the Tribunal "is not bound by technicalities, legal forms or rules of evidence”, it cannot "decline to accept the tender by or on behalf of an applicant at a hearing of a document containing information capable of corroborating the basis of that applicant’s visa claim"?

Question 2: Can it be said that the higher the Minister argues the materiality threshold to be, the more he/she invites courts to engage in impermissible merits review?

The FCA answered those questions as follows.

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.