Federal Court. Can it be said that, although the Tribunal would not have been entirely acting of its own initiative if it accepted K's invitation conveyed by the Applicant to speak to the Tribunal, the information that would have been given by K would not have been presented "in support of the [Applicant's] case", as it would rather have been presented as a result of the Tribunal eliciting information from K? In other words, was the giving of information by K precluded by s 500(6H) of the Migration Act 1958 (Cth)?
The Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth), after which a delegate decided under s 501CA(4) not to revoke that cancellation. The Applicant then applied to the Tribunal for review of the non-revocation decision.
The Applicant had been charged with stealing tools from the store of his previous boss, Mr Atooi. The Federal Court summarised the subsequent events as follows before the Tribunal:
8 Later, during Mr Holloway's cross-examination, the Deputy President asked for Mr Atooi's phone number. Mr Holloway gave it to him. The Deputy President indicated that his associate would make inquiries to see whether Mr Atooi would be available to be asked some questions. Counsel for the Minister before the Tribunal referred to 'the two day rule that does prevent the Tribunal taking into account information that wasn't provided in advance of the hearing'. This appears to have been a reference to s 500(6H) of the Act, which provides as follows:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
9 Counsel for the Minister described the effect of the section to the Tribunal as follows:
The tribunal must not have regard to any oral information submitted in support of an applicant's case unless the information was given to the minister in writing at least two business days before the hearing.
10 In response to that, the Deputy President said, 'All right. Well there's probably not much point ringing Mr Passan [sic] then. I wasn't aware of that particular provision of the Migration Act'.
One thing I've got to ask, Deputy President, is my daughter has just contacted me, and she asked if she - if you wanted to speak to her?'
Mr Holloway's uncontested evidence in this court is that the daughter he was referring to was his eldest daughter, whom I will call K. She was at that time 15 years of age.
12 The Deputy President who was conducting the hearing replied:
No, unfortunately because of the provisions of legislation I can't take into account anything that - of which there hasn't been 48 hours' notice in writing.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, although the Tribunal would not have been entirely acting of its own initiative if it accepted K's invitation conveyed by the Applicant to speak to the Tribunal, the information that would have been given by K would not have been presented "in support of the [Applicant's] case", as it would rather have been presented as a result of the Tribunal eliciting information from K?
Question 2: In discharging its burden of proof concerning the materiality of an error of an administrative decision-maker to the decision in question, does a judicial review application have to establish on the balance of probabilities that that decision maker would have a different decision had it not made that error?
Question 3: Can it be said that, although the "factual content of what K could have said was not greatly different from evidence which [the Applicant] had himself given", there was "a real chance that hearing about that from K herself, in her own words, could have impressed the Tribunal with a greater appreciation of the weight to be placed on the interests of the children than it in fact took away from the evidence of the" Applicant, with the result that the Tribunal's erroneous interpretation of s 500(6H) was material to its decision? In other words, can it be said that, when the administrative finding in question calls for non-binary (i.e. balancing) exercise, so does the materiality test of an error made in that finding?
Question 4: If the answer to Question 3, is it for the court itself to weigh up the different factors that could or should have been considered by the administrative decision-maker?
The FCA answered those questions as follows:
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