Materiality and jurisdictional error

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

In MZAPC v Minister for Immigration and Border Protection, the High Court explored the relevance of “materiality” to establishing a jurisdictional error, and when, how and by whom materiality was to be demonstrated.

The case concerned a decision made by the Administrative Appeals Tribunal (the Tribunal) denying MZAPC’s visa application. The Tribunal had been provided information relating to the applicant’s “court outcomes”, including certain drink driving offences, offences relating to the use of an unregistered or unroadworthy vehicle and an offence described as “state false name”: [9]. The Tribunal did not notify MZAPC that it had received this information nor provide copies of any of it. The information did not appear in the reasons provided for denying the visa.

In the appeal to the High Court, there were three separate judgments — Kiefel CJ, Gageler, Keane and Gleeson JJ (the plurality); Gordon and Steward JJ; and Edelman J.

To the plurality, the analysis is whether, having identified an error, the legislation indicates that the error is intended to invalidate the statutory conferral of decision-making authority. This is a process of statutory interpretation: [31]. Ordinarily statutes will “be interpreted as incorporating a threshold of materiality in the event of non-compliance”: [31]. The question that must be asked, according to the plurality, is whether the breach was material in that “compliance could realistically have resulted in a different decision”: [35]. Their Honours also indicated that certain errors — namely bias or unreasonableness — will necessarily be material due to their nature so do not need to meet any additional threshold: [33]. Finally, and critically, the judgment stated that the burden was on the plaintiff “to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”: [39] (emphasis in original).

Edelman J’s judgment echoed some of the plurality’s analysis. For his Honour, “materiality” analysis must be conducted after an error has been identified. Materiality is a second step that “is concerned with whether Parliament intended that non-compliance will have the effect that a decision is beyond power and thus invalid. Where the statutory condition is not fundamental then the usual focus is upon whether the non-compliance might possibly have affected the decision”: [164]. In line with the majority, Edelman J also noted that bias and unreasonableness will always be material errors: [182]-[183].

Gordon and Steward JJ took a different approach. Their Honours held, consistently with Edelman J, that the identification of a jurisdictional error is a two step process. The first step is to identify an error that “could realistically have resulted in a different decision”: [85]-[86] (emphasis in original). The second step is to assess the materiality of the decision. Crucially, in contrast to the plurality, Gordon and Steward JJ held that the onus lay on the respondent decision-maker at this second step, “to show that the error could not have made a difference”: [87].

Edelman J agreed with Gordon and Steward JJ that the onus should ordinarily be on the respondent decision-maker to show an error was not material but also noted that the allocation of onus was likely to have “little practical effect”: [156] (see further [165], [171], [174]). And it did not in this case.

The failure to notify MZAPC of adverse information that had been provided to the Tribunal and which MZAPC did not have the opportunity to address was accepted by the Minister to have been a breach of procedural fairness obligations. However, all three judgments agreed that the adverse material did not appear in the Tribunal’s reasons for denying the visa so an inference was available that the material had not borne upon the decision.[1] Further, the judgments of Gordon and Steward JJ and Edelman J noted that the decision-maker had given multiple other reasons for the outcome. Thus, the breach of procedural fairness could not realistically have made a difference to the outcome, and the appeal was dismissed.

In summary, the case confirms that an error will need to be material to be a jurisdictional error, absent other discernible legislative intent as to validity. It also clarifies that certain errors — only bias and unreasonableness were referred to — will necessarily be material. The judgments of Gordon and Steward JJ and Edelman J broke this assessment into a two step process and placed the onus of proof of “immateriality” on the respondent decision-maker at the second step. The plurality of Kiefel CJ, Gageler, Keane and Gleeson JJ held instead that the requirement is to demonstrate a material error falls on the applicant.

[1] MZAPC, [67] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [148] (Gordon and Steward JJ), [204] (Edelman J)