MZAPC v Minister for Immigration and Border Protection  HCA 17
In 2014, a delegate of the Minister refused an application for a protection visa made by the appellant, an Indian national. The appellant applied to the Refugee Review Tribunal (the Tribunal) for merits review of that decision. In accordance with s 418(3) of the Migration Act 1958 (Cth) (the Act) the Secretary produced to the Tribunal documents relevant to the review, which included a notification to the Tribunal that documents contained in the notification should not be disclosed to the appellant because the information had been shared by Victoria Police for investigative purposes only (the notification). The documents in the notification included a “Court Outcomes Report”, which detailed a number of offences the appellant had been convicted of, including an offence of dishonesty. The Tribunal affirmed the decision of the delegate, but the statement of reasons for the final decision made no reference to the notification or documents specified in the notification.
The appellant appealed to the Federal Court, arguing that the decision was affected by jurisdictional error as the Tribunal’s failure to disclose to the appellant the existence of the notification had breached the implied requirement of procedural fairness. Mortimer J dismissed the appeal, determining that the appellant failed to establish that disclosure to the appellant of the existence of the notification could realistically have resulted in the Tribunal having made a different decision, as there was no evidence that the Tribunal took into account the offence of dishonesty. That is, the appellant failed to establish the threshold of ‘materiality’ required for jurisdictional error.
There were two issues on appeal to the High Court. Firstly, the appellant argued that he did not bear the onus of establishing materiality. Once the appellant had demonstrated by way of reasonable conjecture that the Tribunal could have taken the information in the notification into account, the onus then shifted to the Minister to prove that disclosure of the notification could not have resulted in the Tribunal making a different decision. Secondly, the appellant contended that the Federal Court erred by acting on the presumption of fact that the Tribunal did not take information covered by the notification into account simply because there was no reference to the information in the Tribunal’s reasons.
The High Court unanimously dismissed the appeal. Kiefel CJ, Gageler, Keane and Gleeson JJ confirmed that the appellant bears the onus of proving the historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred. Turning to the content of materiality, the majority stated that there was a realistic possibility that the Tribunal’s decision could have been different had the Tribunal taken into account the offence of dishonesty, as outlined in the notification. However, there was no basis in the evidence to find on the balance of probabilities that the Tribunal took the offence of dishonesty into account, and thus, the appellant failed to establish materiality.
The other three Justices came to a different conclusion in relation to which party bears the burden of proof in establishing materiality or immateriality. Gordon and Steward JJ held that once the applicant establishes a connection between the error and the course of decision-making that followed, the onus falls on the Minister to establish immateriality, that is, that the error could not have made a difference to the decision made. However, the Minister successfully established that the denial of procedural fairness was immaterial. The Tribunal’s rejection of the appellant’s main contention in support of his protection visa that he had been subject to continuing threats did not follow from the Tribunal making any findings about the appellant’s honesty. In a separate judgment, Edelman J agreed with Gordon and Steward JJ on the issue of onus. Edelman J found that the failure by the Tribunal to refer to the notification in its reasons would allow an inference to be drawn that the matter had no effect on the Tribunal’s decision, but this inference must be based upon all the circumstances of the case. In any case, his Honour reasoned that there were other circumstances, such as the Court Outcomes Report being of marginal relevance to the issues before the Tribunal that supported the inference that the Court Outcomes Report had no effect on the Tribunal’s reasons.
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