If an Applicant wishes to successfully challenge any administrative decision made by any Commonwealth or State Department or a review body acting in the shoes of that body before the Court, a jurisdictional error must be present in the decision.
There is no exhaustive list of jurisdictional errors, but common types of recognised error include:
- failing to take into account a mandatory relevant consideration;
- taking into account an irrelevant consideration;
- failure to give reasons, or adequate reasons;
- applying the incorrect statutory test or otherwise failing to comply with the terms of the applicable legislation;
- making an illogical or irrational finding; and
- a decision affected by actual or apprehended bias.
In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, the High Court provided guidance on how to establish a jurisdictional error in an administrative decision in three separate sets of reasons.
Test set out by the High Court majority
The majority found that for the Applicant to make out a jurisdictional error, he or she must establish a legal error in the administrative decision.
Once established, the Applicant then has to demonstrate the materiality of the legal error in the sense that the error was material to the ultimate outcome of the decision. Otherwise, the legal error would not amount to a jurisdictional error of the sort which a Court would set aside or redress.
To establish materiality, the Applicant has to show that there was a "realistic possibility" that a different decision could have been made had there been no legal error of the sort identified. This is a question of fact which must be established on the balance of probabilities by inferences drawn from the totality of the evidence before the Court. The majority reinforced that the test is whether a different outcome could rather than would have occurred.
It is to be noted though that the majority found that an Applicant does not need to establish materiality for every type of jurisdictional error alleged because certain legal errors (such as those constituted by bias or legal unreasonableness) are inherently material to the decision.
Key takeaways for decision-makers
For some time in Australia, the development of administrative law and the basis for establishing successful grounds to challenge administrative decision-making of Commonwealth and State entities has been through the numerous decisions of the High Court and superior Federal Courts in the migration law space. Those principles are pervasive and have common application in numerous other settings both at the judicial and merits review stages (eg. licensing reviews; planning amendments, environmental controls and regulation; and social and medical benefit entitlements, just to name a few).
For now, the approach of the majority will hold sway on the significant question of whether an alleged jurisdictional error is material to the outcome and therefore susceptible to successful judicial review. The principles set out in those reasons are binding on lower courts and should not present much leeway for Applicants to contend that the Commonwealth or State (as relevant) carries an onus to establish an identified error had no material effect on the outcome.
Clayton Utz represented the Minister for Immigration and Border Protection at first instance and all appellate stages of the litigation in MZAPC, including before the High Court.