Federal Court. Can it be said that the Tribunal's "inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met"?
This is an appeal to the Federal Court (FCA) from a judgment of the Federal Circuit and Family Court.
The FCA said as follows:
38 The appellant makes two interlocutory applications, first, for leave to rely on the proposed amended notice of appeal, and secondly, to adduce further evidence.
39 The appellant submits that the proposed grounds of review were not advanced below because the appellant was not legally represented when the application for judicial review was filed on 2 February 2018. The appellant could not afford legal representation. Although the appellant engaged lawyers in around February 2020 and made some payments by instalment for preliminary work on the matter, the appellant could not afford to pay legal fees to obtain counsel’s opinion on the prospects of the appellant’s judicial review application. The appellant’s legal representatives ceased to act on 13 December 2022 before the hearing in the Primary Court. The appellant now seeks, with the benefit of legal representation, to adduce the proposed grounds with new evidence in support.
The FCA found that some passages in the Tribunal's reasons had been copied from Tribunal reasons in other matters.
Some of the questions to the FCA were as follows:
Question 1: May the FCA "grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated"?
Question 2: Should the fact that the appellant had legal assistance at an earlier point in time prevent him from raising grounds that merit consideration?
Question 3: Can it be said that the power under s 27 of the FCA Act to receive further evidence is "remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry"?
Question 4: In determining whether the Tribunal failed to bring its own independent mind to bear on what would be the correct or preferable decision to be made, does the fact that the copied reasoning do not involve adverse credibility findings mean that the copied reasoning implanted with the extraneous personal circumstances applicable to another visa applicant (and not the appellant) is unimportant?
Question 5: Can it be said that the Tribunal's "inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met"?
Question 6: In determining whether the Tribunal failed to bring its own independent mind to bear on what would be the correct or preferable decision to be made, is it potentially significant that the Tribunal misstates the facts which go to identifying, understanding and addressing the claims made by the appellant?
Question 7: Is the materiality test as captured by the High Court in LPDT at [16], namely whether "it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made"?
The FCA answered those questions as follows: