Clearing the air: The High Court clarifies the law on materiality and jurisdictional error

Government decision-makers have been wrestling with what is a material jurisdictional error, following a string of High Court decisions. They now have practical guidance on the principles of materiality, with the High Court saying "differences of expression and emphasis previously adopted by individual Justices have been set aside in favour of" that practical guidance in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12.

The cancelled visa, the Ministerial direction, and the alleged jurisdictional error in LPDT

The appellant was a foreign national who was granted an Australian visa in 2008. Between 2011 and 2017, he was convicted of various criminal offences and sentenced to a term of imprisonment and, in May 2018, his visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth). His application, under section 501CA(4) of the Act, for revocation of that cancellation failed, and the appellant subsequently applied to the Administrative Appeals Tribunal to review that decision.

The Tribunal affirmed the delegate's decision not to revoke the visa cancellation, as it was not satisfied there was "another reason" why it should be revoked. In considering whether there was "another reason", the Tribunal was required by section 499(2A) of the Act to comply with Ministerial Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. The appellant applied for judicial review of that decision.

The High Court held that each of the three instances in which the Tribunal failed to comply with Direction 90 were particulars to one error: a failure to comply with section 499(2A) of the Act, which requires decision-makers to comply with written directions made by the Minister. The Court found that error was material and, thus, jurisdictional.

The High Court's guidance on materiality and jurisdictional error

In eight succinct paragraphs, the Court set out the following "practical guidance" on the principles to be applied in assessing materiality:

1. An allegation of jurisdictional error which requires an assessment of materiality raises two questions: has an error occurred and, if so, was that error material.
2. The inquiry posited by each question is wholly backward-looking, and must be answered with reference to the decision that was made and, in some cases, how it was made.
3. The applicant for judicial review bears the onus of proof on the balance of probabilities in relation to those facts.
4. What must be proved to show what decision was made and how it was made will depend on the nature of the error. In a "common case", the onus of proving the relevant facts may be discharged by tendering the decision-maker's statement of reasons.
5. The applicant must satisfy the court on the balance of probabilities that the alleged error occurred.
6. Unless the error is of a type where it is always material and therefore jurisdictional (such as bias, or unreasonableness), whether the error is material is determined by inferences drawn from the evidence.
7. The materiality question is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error.
8. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable.
9. However, the threshold of materiality is not demanding or onerous.