New Material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

The High Court of Australia has for several years now struggled with the concept of materiality in the law of judicial review (see my piece from 2019). The judges have at times been squarely at odds about the meaning and scope of the concept. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the Court sought to resolve this disagreement, in a Vavilov-esque endeavour to bring all judges to follow a common approach.

To begin with, the judges (who jointly authored the judgment) frankly acknowledged the difficulties created by the disagreements in the Court’s jurisprudence:

The reasons of the primary judge and the Full Court in the present case, as well as other trial and intermediate appellate decisions, suggest uncertainty or confusion about the meaning and effect of some of the language used by the Court in identifying the principles to be applied in assessing materiality. It would be unsatisfactory if that uncertainty or confusion persisted. It is desirable to give practical guidance in terms with which all the Court agree. Necessarily, differences of expression and emphasis previously adopted by individual Justices have been set aside in favour of the guidance that is now set out (at para. 8).

The best shall not be the enemy of the good, or at least, the comprehensible!

In the Court’s view, two questions are always relevant: “has an error occurred; and, if so, was that error material” (at para. 9). In answering these two questions, the applicant bears the onus of proof and must discharge it on the balance of probabilities (at para. 10) by reference to the record (at paras. 11-12).

As to the second question, the only cases in which materiality will be treated as having arisen automatically are those involving actual or apprehended bias or unreasonableness in the final result (at para. 6). In all other cases, one must ask whether the error could realistically have affected the result. This inquiry will be context-specific:

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained (at para. 15).

If affirmative answers have been given to these two questions, the decision should be quashed “unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made” (at para. 16), subject to discretion to withhold a remedy on other grounds.

This framework is, I would say (though “he would say that, wouldn’t he”) consistent with what I laid out in my 2019 article. A court must determine whether there was an error and whether the error had a causal effect on the decision at issue. In making these determinations, the onus is on the applicant to ‘make out the case’. If they have done so, it remains theoretically possible for a court to refuse to intervene on the basis that the same decision would inevitably have been reached regardless of the error. But I expect that the Court’s clear articulation of the framework, the onus and the standard of proof will reduce uncertainty in this area of Australian administrative law.

In this particular case, the decision at issue had been taken by the Administrative Appeals Tribunal. It related to the appropriateness of revoking the applicant’s visa because he had engaged in criminal conduct. The Tribunal was obliged to consider the following matters in its decision:

The condition imposed by s 499(2A) [of the Migration Act] by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations (at para. 33).

This the Tribunal did not do. Indeed, there was “no rational basis” for its findings about the individual considerations (at para. 34). Failing to follow the prescribed process amounted to a material error because, had the Tribunal conducted itself appropriately, it could realistically have come to a different conclusion:

Those aspects of the error, in the statutory context in which the decision was made, compel the finding that the evaluative conclusion reached by the Tribunal inthe exercise of the discretion under s 501CA(4) could have been different if there had been no error. Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal’s assessment of Primary Consideration 1, and in that the Tribunal’s assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant’s visa. The Tribunal’s error in its process of reasoning in these respects alone established that the error was material (at para. 35).

That the court below had come to the opposite conclusion in what looks like a straightforward case no doubt convinced the members of the Court that it was necessary to put their differences aside and formulate a new framework for materiality in the law of judicial review. My first impressions are favourable but, of course, only time will tell whether the LPDT revision proves to be a durable framework that reduces uncertainty in Australian administrative law.

This content has been updated on August 27, 2024 at 15:52.