Federal Court. In order for documents or information to be "before the Minister" under s 473DC(1)(a), is it sufficient that they were in the possession of the Minister’s Department and therefore in the Minister’s constructive possession? Does "the fact that on the day before the SHEV interview the delegate accessed [an electronic document] mean that the [document] was before him when the decision was made"? Does the reasoning in Plaintiff M174 concerning s 57 apply to s 473DE? Was Minister required to file notice of contention on materiality?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Section 473DC(1)(a) of the Migration Act 1958 (Cth) provided: "Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that ... were not before the Minister when the Minister made the decision under section 65". In order for documents or information to be "before the Minister", is it sufficient that they were in the possession of the Minister’s Department and therefore in the Minister’s constructive possession?
Question 2: Does "the fact that on the day before the SHEV interview the delegate accessed [an electronic document] mean that the [document] was before him when the decision was made"?
Question 3: In Plaintiff M174, Gageler, Keane and Nettle JJ held as follows in relation to s 57: "For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa". Section 57 is an analogue of s 473DE. Does the reasoning in Plaintiff M174 apply to s 473DE?
Question 4: In assessing the materiality of the error in question, the primary judge held that the absence of the error "would not have resulted" in a different decision. The primary judge was wrong, in that an error "is material to a decision if, had it not been made, if it could have made a difference to the outcome". "In argument, counsel for the Minister acknowledged that the primary judge erred in this respect but sought to defend his Honour’s decision on the basis that the error was not material although no notice of contention had been filed". Was it necessary for the Minister to file a notice of contention arguing that the error was not material?
The FCA answered those questions as follows: