Courts will ask whether an error in an administrative decision has deprived the applicant of a successful outcome – if not, a court will be less likely to set the decision aside.

What is the problem decision-makers face?

As legislation becomes ever-more detailed and codified, decision-makers must comply with an increasing number of statutory requirements to ensure that their decisions will withstand judicial scrutiny. This can be a daunting task where a decision is complex and relies on a number of bases or conditions to reach an outcome. When a complex decision is subject to judicial review, it can be difficult to predict on what grounds, if any, a court will set the decision aside if it is affected by error.

How did Minister for Immigration and Border Protection v SZMTA affect this?

Since the 2018 case of Hossain v Minister for Immigration and Border Protection [2018] HCA 34, the High Court has adopted a new test of "materiality" to answer the question of what kind of error in an administrative decision will be a jurisdictional error.

In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 the High Court affirmed (by a 3-2 majority) that an error will be jurisdictional only if it is "material" to the outcome of the decision under review. In other words, courts will ask whether the avoidance of error could realistically have resulted in a different decision. If the result would have been the same even in the absence of the error, a court may be reluctant to set the decision aside.

The facts and decision in Minister for Immigration and Border Protection v SZMTA

In SZMTA, the Department of Immigration and Border Protection notified the Registrar of the Administrative Appeals Tribunal that section 438 of the Migration Act 1958 applied to certain information before the Tribunal. The High Court unanimously held that where a Tribunal receives notification under section 438, the requirements of procedural fairness oblige the Tribunal to disclose the fact of notification the applicant for review. It was uncontroversial that a Tribunal will commit an error by failing properly to disclose the fact of notification to an applicant.

Where the High Court diverged was in its assessment of whether a breach of the Tribunal's obligation to afford procedural fairness must be "material" to the outcome of the decision to be jurisdictional in nature:

  • The view of the majority (Justices Bell, Gageler and Keane) was that where a Tribunal has breached its obligations of procedural fairness, the "question that remains" for the court on judicial review is "whether there is a realistic possibility that the Tribunal's decision could have been different" if it complied with its obligations. The majority found that in this case the denial of procedural fairness could not realistically have made any difference to the result before the Tribunal. The Minister's appeal was allowed.
  • However, two judges (Justices Nettle and Gordon) rejected the concept of materiality altogether. Essentially, their Honours observed that courts should first determine whether an error is jurisdictional, and then determine whether relief should be granted in the exercise of discretion. Materiality plays no part in determining whether an error is jurisdictional.

After Minister for Immigration and Border Protection v SZMTA, here's what you need to do

Although the High Court is not unanimous in its application of the materiality test, a majority of the Court has indicated that it will focus on whether an error in a decision has deprived the applicant of a successful outcome.

Decision-makers should remain careful to comply with all statutory conditions and requirements that apply to the making of any administrative decision. For example, where a statute does not exclude the rules of procedural fairness, an applicant should be given an opportunity to comment on adverse information.

If a decision is challenged in court, the onus will be on the applicant to show that the decision should be set aside. Following SZMTA, it may be that a decision will only be set aside if it can be shown that an error has affected the outcome of the decision. Where the outcome would have been the same in any event, courts will be less likely to set the decision aside. Applying the test of materiality, courts are likely to take a more forgiving approach to errors that make no difference to the outcome.