21 May 2021

The High Court confirms high bar for materiality

This article was written by Tessa Boardman, James Brookes and Justin McDonnell

In MZAPC v Minister for Immigration and Border Protection,[1] the High Court dismissed an appeal from the Federal Court of Australia concerning the “materiality” threshold for jurisdictional error.  The materiality threshold must ordinarily be met in order for a jurisdictional error to arise from the breach of an express or implied condition of a conferral of a statutory decision-making authority. 

Materiality

The case raised issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection.[2]  In that case, the High Court provided clear guidance on whether an error is jurisdictional.   In doing so, they decided the existence of an error did not necessarily mean it was jurisdictional.   Rather, a jurisdictional error will only arise where the threshold of materiality is met.   This requires an affirmative answer to the question of whether the error deprived the appellant of a successful decision.  A breach that occasions no “practical injustice” ought not deprive a decision of statutory force.[3]

The High Court’s decision in Minister for Immigration and Border Protection v SZMTA[4] subsequently explained that, for the materiality threshold to be met, there must be a realistic possibility that the decision in fact made could have been different if the breach of a condition of procedural fairness had not occurred.[5] The existence of a realistic possibility is a question of fact which the plaintiff bears the onus of proving.[6] A majority of the High Court in MZAPC found that the decision in SZMTA was sound and ought not be revisited. 

History of the litigation

The appellant was a citizen of India who arrived in Australia on a student visa in 2006.   Prior to the expiration of his visa, the appellant applied for an additional student visa.   His application was refused.  In accordance with Part 5 of the Migration Act 1958 (Cth), the appellant applied to the Migration Review Tribunal (the MRT) to have the refusal reviewed.  The MRT determined that it lacked jurisdiction to review the application, which was lodged out of time.[7] The appellant appealed the decision of the MRT to the Federal Circuit Court, who dismissed the appeal.   

In 2014, the appellant applied unsuccessfully for a protection visa.  He applied to the Refugee Review Tribunal (RRT) for a merits review of that decision.  The Tribunal dismissed the appeal.  Notably, the RRT had been given a series of documents by the Secretary of the Department of Immigration and Border Protection and had been told not to disclose them to the appellant.  One of the documents was a Court Outcomes Report (the notification) that informed the Tribunal of offences for which the appellant had been convicted, including an offence of dishonesty.   The notification was not disclosed to the appellant and throughout the hearing, no reference was made to it.  The Tribunal’s decision also made no mention of the notification.  An appeal of the Tribunal’s decision to the Federal Circuit Court was also unsuccessful.

On appeal to the Federal Court, the appellant argued that the decision was affected by jurisdictional error.   There was no dispute that the RRT’s failure to disclose the notification amounted to a breach of an implied condition of procedural fairness, as identified in SZMTA.[8] The issue in dispute was the materiality of the breach.  Materiality turned on whether disclosure could realistically have resulted in a different decision.[9] However, it had to first be established that the Tribunal had in fact taken the notification into account in making its decision, and there was no evidence of this.  Therefore, the Federal Court dismissed the appeal.[10]

Appeal to the High Court

The appellant appealed the decision of the Federal Court by special leave to the High Court.  He argued, relevantly, that he did not bear the onus of proving that the Tribunal took the information covered by the notification into account to establish materiality.  Once he had established that the Tribunal could have taken the information into account adversely to him, the onus shifted to the Tribunal to prove that disclosure of the notification could not have resulted in a different decision.[11]

The High Court unanimously dismissed the appeal, but did so on different grounds.  The majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) held that:

  • It was necessary to determine how the decision had in fact been made by the Tribunal before considering whether it could have been made differently.[12] The onus of establishing these historical facts rested with the plaintiff.[13]
  • However, even where potentially adverse information is not proved to have been taken into account, a question can still remain whether the information was so “highly prejudicial” that “the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the [Tribunal] may have been affected by [it] albeit subconsciously.”[14] This was not such a case.[15]
  • The onus of proof in relation to materiality lies on the plaintiff, who also bears the overall onus to prove jurisdictional error.[16] The plaintiff need not prove that a different decision would have been made had there been compliance with the condition of procedural fairness that was breached. However, the plaintiff must establish, on the balance of probabilities, that a different decision could have been made had there been compliance.[17]
  • In this case, although there was a realistic possibility that the final decision of the Tribunal could have been different if they had taken the offence of dishonesty into account in assessing the plaintiff’s credit, there was no evidence that the Tribunal in fact took the notification into account.

Gordon and Steward JJ, and Edelman J gave separate reasons.  The key distinction in their Honours’ judgments lay in the determination by each that the plaintiff does not bear the onus of proof in relation to materiality.  Once an error is identified, their Honours considered that the party seeking to rely on the decision bears the onus of proving that the error was immaterial to the decision.[18] 

Implications

The majority’s decision sets a very high bar for materiality. It reinforces the position developed in SZMTA that, where a procedural error is identified, a plaintiff will bear the onus of proving the materiality threshold is met. The first hurdle for a plaintiff lies in establishing that the procedural error identified in fact formed part of the decision-making process of the Court or Tribunal below. If that bar is not met, it will not matter whether the error identified could have resulted in a different decision if it had been considered.

[1] [2021] HCA 17.

[2] [2018] HCA 34; MZAPC [1].

[3] MZAPC [32].

[4] (2019) 264 CLR 421.

[5] MZAPC [2].

[6] Ibid.

[7] Ibid [5].

[8] Ibid [17].

[9] Ibid [18].

[10] Ibid [19] and [20].

[11] Ibid [23].

[12] Ibid [38] and [65].

[13] Ibid [39].

[14] Ibid [72]

[15] Ibid [81].

[16] Ibid [39].

[17] Ibid.

[18] Edelman J at [197]-[198] and Gordon and Steward JJ from [102] to [123].

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