Materiality test disguising merits review

Federal Court: The writer has voiced concerns in several articles about the fact that, sometimes, merits review is inadvertently labelled by the Minister as materiality test considerations. With respect, were those concerns were echoed by 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.

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