Federal Court. Are decision-makers required to identify the precise respects in which information is false or misleading? Can the question of whether a person provided "false or misleading information in a material particular" within the meaning of PIC 4020 be answered by a court? In order for the "false or misleading in a material particular" limb of PIC 4020 to be enlivened against a visa applicant, must the applicant have knowledge that the information is false or misleading? If so, are decision-makers required to identify knowledge as a requirement and make an express finding about the matter? Does the materiality threshold involve a question of whether the chances of a different outcome in the absence of error would have been "slim"?
A delegate of the Minister refused to grant a student visa on the basis of non-satisfaction of PIC 4020 to the Appellant, who applied to the Tribunal for merits review. The Tribunal affirmed the delegate's decision. The Federal Circuit Court (FCCA) dismissed the judicial review (JR) application and thus held it was unnecessary to consider the Minister's argument that the JR application lacked utility in that the Appellant had already completed the courses meant to be enabled by the student visa he applied for and that there was no evidence before the FCCA that he intended to continue to study. The Appellant appealed to the FCCA's decision to the (FCA) and Minister did not file notice of contention on utility. However, lack of utility argument was raised in oral submissions by the Minister at the FCA.
Question 1: Should the utility argument be rejected on the basis that such an argument should be the subject of proper notice (e.g., a Notice of contention) in order to ensure procedural fairness?
Question 2: Can it be said that the Tribunal "was required to identify, not only the information which was provided to the delegate and the Tribunal, but also the precise respects in which that information was false or misleading"?
Question 3: If the answer to Question 2 is "yes", did the Tribunal did that in this case?
Question 4: Is the question whether a person provided false or misleading information in a material particular within the meaning of PIC 4020 a jurisdictional fact in the sense that a court can and should consider it for itself?
Question 5: In order for the "false or misleading in a material particular" limb of PIC 4020 to be enlivened against a visa applicant, must the applicant have knowledge that the information is false or misleading in a material particular?
Question 6: If the answer to Question 5 is "yes", is the Tribunal required to identify knowledge as a requirement and make an express finding about the matter?
Question 7: If it can be said in a particular case that, had an administrative decision-maker not made an error, the prospects of it having made a different decision appears slim, does this present an obstacle to the materiality threshold being satisfied?
The FCA answered those questions as follows:
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