Materiality is not a magic wand to defeat legitimate judicial review claims.
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law 13 August 2021
The recent High Court decision of MZAPC v Minister for Immigration and Border Protection [2021] HCA 17[1] places some limits on the concept of materiality in determining if there has been jurisdictional error. Kiefel CJ, Gageler, Keane & Gleeson JJ found that materiality does NOT apply to unreasonableness or bias. There is no doubt that in all judicial review cases, materiality does loom as a possible negative for applications, but MZAPC shows there are limitations to ‘materiality’.
Recapping, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, the High Court determined that :
30.Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
In Hossian, the visa applicant did not meet condition 4004 (The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.) Even though the tribunal made a different error in law, the High Court ultimately found that the tribunal’s error was not material because the visa applicant had not paid his debts to the Commonwealth and therefore did not meet 4004.
However in MZAPC, the High Court acknowledged that that are limits on where the concept of materiality can apply. Kiefel CJ, Gageler, Keane & Gleeson JJ cited 2 examples – unreasonableness and bias. Here is what Their Honours said:
33.The qualification "ordinarily", and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.
The issue of bias raises interesting questions, particularly the apprehension of bias. Their Honours in MZAPC thought that prejudicial information even if on the face of it, not taken into account by the tribunal could still lead to the conclusion that "the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the [Tribunal] may have been affected by [the information] albeit subconsciously".
This issue was fully explored, favourably to the applicant in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 at [29].
On 12 August 2021, in Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945[2], the Federal Court found that an error by the AAT in interpreting the evidence provisions in character cases was material because the AAT thought it had no power to take up a suggestion by the applicant that the AAT contact his 15 year old daughter to take evidence from her. The Federal Court put it this way:
52 The third and fourth steps call for more difficult evaluative judgments. Could K's evidence, realistically, have affected the assessment of her best interests or those of her younger sister? I am ultimately persuaded that it could have. It is true, as the Minister submitted, that the factual content of what K could have said was not greatly different from evidence which Mr Holloway had himself given. But that is not the end of the matter. The Tribunal was required to make an assessment of the likely emotional and psychological impact of separation from Mr Holloway on K and her sister. 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 father who, admittedly, had been absent for much of their lives.
53 That could have led to one of the primary considerations having greater weight in the Tribunal's deliberations. This takes the analysis to the fourth of counsel's steps: could that realistically have affected the outcome? In my view it could. While the Tribunal found Mr Holloway's offending to be very serious, it also accepted that his remorse was genuine, that there were prospects for rehabilitation, that there were factors which reduced the risk of reoffending, and that he had real bonds of affection with his family in Australia. To the extent that the Tribunal placed weight on any single factor, it did not do so in emphatic terms. The court must not itself weigh up the different factors but it can find that, in light of the way the Tribunal did approach them, there was a realistic possibility that eliciting evidence from K could have led to a different outcome. I am satisfied of that in this case.
As can be seen therefore ‘materiality’ is no magic wand.
[1] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/17.html#fn77
[2] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA//2021/945.html