Materiality and Morality: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

In its decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, the High Court of Australia ventured once again into the murky territory of materiality in administrative law (a topic I address in detail in this paper).

The issue in this case was who bears the onus of establishing materiality, the plaintiff or respondent. The Court was unanimous as to the outcome, agreeing that the error complained of was immaterial.

But the judges reached the outcome by different routes. Four judges held that the onus is on the plaintiff generally in judicial review proceedings. Not only, therefore, does the plaintiff have to demonstrate that there was unlawfulness but, in addition, the plaintiff must demonstrate that the unlawfulness had an impact on the outcome. Three judges disagreed with this approach, reasoning that as soon as there is a realistic possibility that an error had an impact on an administrative decision, the onus shifts to the state to demonstrate that the unlawfulness did not have such an impact.

The MZAPC case was about the denial of a protection visa to the plaintiff/appellant, who feared persecution in India. When the visa was denied by a ministerial delegate, the plaintiff/appellant applied to the Migration Review Tribunal. The crux of the plaintiff/appellant’s case was that he feared that if he were returned to India, his uncle would kill him because of a land dispute.

In preparing the file for the Tribunal, the Minister provided various documents about the plaintiff/appellant to the Tribunal, which related to convictions for drink-driving offences and giving a false name to police.

However, the Minister also certified that these documents should not be disclosed to the plaintiff/appellant. This, the parties agreed, was a breach of procedural fairness. But the Tribunal said nothing about these documents in its decision, which turned on the plausibility of persecution due to the land dispute. Apart from a boilerplate reference to having considered ‘all the circumstances’, there was no reference to the documents.

In these circumstances, should the Tribunal’s decision have been set aside for breach of procedural fairness?

The plaintiff/appellant submitted as follows:

He argues that [materiality demands] no more of him than that he demonstrate by way of reasonable conjecture that the Tribunal could have taken information covered by the notification into account adversely to him in making the decision and that, if it did, it could have been persuaded by him to make a different decision if it had disclosed the notification to him. He argues that demonstration of the reasonableness of that conjecture caused the onus to shift to the Minister, as the party to the application for judicial review seeking to uphold the decision of the Tribunal, to prove that disclosure of the notification could not in fact have resulted in the Tribunal having made a different decision (at para. 23).

For the majority, answering the materiality question in any given case involves a counterfactual analysis “of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached” (at para. 38). Because this is a question to be determined “on the balance of probabilities by inferences drawn from the totality of the evidence” (at para. 38), the burden of proof lies on the plaintiff:

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition (at para. 39).

This is no different, in the majority’s view, from the accepted proposition that the plaintiff bears the onus of establishing, in the first place, that a decision breached the principles of administrative law. (Here, although the majority does not make this point as clearly as it might, there also is a threshold of seriousness to surmount before one can say that an irregularity in the decision or decision-making process constituted a breach of the principles of administrative law: see Edelman J’s observations at para. 163).

In some circumstances, it will not be necessary to prove materiality: cases involving the “standard condition[s]” of bias and reasonableness are examples of where “non-compliance … will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met” (at para. 33). Everywhere else, though, “the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff” (at para. 60), with materiality to be determined” from the totality of the evidence adduced on the application” (at para. 68).

Here, there was no basis for concluding that the Tribunal had taken the undisclosed documents into account and, therefore, it could not be said that the breach of procedural fairness was material to the decision, which turned on the Tribunal’s assessment of the ongoing consequences of the land dispute, not the plaintiff/appellant’s trustworthiness.

Gordon and Steward JJ came to the opposite conclusion on materiality, as did Edelman J in separate reasons. For Gordon and Steward JJ, failure to comply with the principles of administrative law will result in a decision being unlawful “unless compliance with the [principle] could not have made a difference to the decision that was made in the circumstances in which the decision was made” (at para. 84). The plaintiff must scale the low threshold of demonstrating that the identified breach “could realistically have resulted in a different decision” (at para. 85). As Edelman J put it, there is “a threshold requirement of injustice” (at para. 159). Beyond that, however, the imperative of protecting individual interests by requiring the executive to act only within the confines of law, the onus is on the government:

In cases of the kind under consideration in this appeal, public power has been exercised in a way that disadvantages an applicant – an individual. Once the individual shows a departure from the lawful exercise of power and that the departure might realistically have affected the outcome of a decision, the individual cannot be expected or required to show that they would have obtained a favourable exercise of statutory power but for the departure. It is for the decision-maker to show that the individual would not have done so (at para. 97).

Therefore, “if an individual establishes error in an administrative decision, it should be for the Executive to establish that, even without the error, the same outcome would have been reached” (at para. 99). Fundamental principles – “the rule of law; the constitutional relationship between the Executive and the judicial branch; the relationship between individuals and the State; and, in particular, the role of the judicial branch in the protection of the individual against incursions of executive power” – weighed “decisively” in favour of this proposition (at para. 103). All the more so, they noted, where the individual in question is unrepresented (at para. 115), especially because the government is much more likely to be in possession of the relevant information (at paras. 116-123; though here I must express some doubt that the respondent in judicial review of a tribunal decision, who will generally be an officer of the Crown (or, sometimes, the successful party at the tribunal level) rather than the tribunal itself will indeed be in a privileged position).

Edelman J added that the approach to materiality in the context of criminal trials and civil litigation supports the proposition that the onus should be on the state to demonstrate immateriality (see e.g. at paras. 175-196).

These judges also concluded, however, that the breach of procedural fairness here was immaterial. Edelman J explained why:

In addition to the absence of any express reference by the Tribunal to the Court Outcomes Report, there are four other circumstances that support the inference that the Court Outcomes Report had no effect on the Tribunal’s reasons. First, before the Tribunal could take the Court Outcomes Report into account it would have been required positively to exercise its discretion under s 438(3)(a) of the Migration Act to have regard to matters contained in a document that is the subject of a notification under s 438. The Tribunal made no mention of the exercise of that discretion. Secondly, the information in the Court Outcomes Report was of marginal relevance to the issues before the Tribunal. To the extent that the Court Outcomes Report had potential to impact upon the appellant’s credibility, the “state false name” offence of dishonesty was, as Mortimer J said [at first instance], “buried” in the Court Outcomes Report along with the appellant’s other driving and alcohol-related offences. Thirdly, the Tribunal did not reach any positive conclusion that the appellant lied in relation to any issue. As Mortimer J said, although the Tribunal rejected some of the appellant’s evidence as not being “credible or plausible”, this was a finding of objective unlikelihood of the evidence independently of any suggestion that the appellant was a person who should not be believed. Fourthly, the Tribunal accepted significant parts of the appellant’s evidence. The Tribunal accepted that there had been a dispute between the appellant’s father and the appellant’s uncle. The Tribunal accepted the appellant’s evidence about being taken to a house by his cousin and drugged and held there until a ransom was paid for his release. The Tribunal accepted that the appellant’s family had disowned him and accepted the evidence of the appellant that this was because he had cut his hair and had “adopted the Australian lifestyle and started drinking alcohol” (at para. 205).

On either approach, then, the plaintiff/appellant was doomed to fail.

Nonetheless, the controversy about materiality is highly illuminating.

For one thing, it highlights the importance of first principles (or administrative law values!) in guiding judicial decision-making.

For another, it illustrates the utility of analytical clarity: the careful distinctions drawn by all of the judges between the different senses of materiality enabled them to authoritatively resolve the issue before them. Put another way, without analytical clarity, there is muddled morality. Unless the issue about the onus is clearly described — as it was here — the moral stakes of resolving it will be unclear (as, indeed, they were in earlier decisions of the Court).

In the end, astute judicial judgement, which may involve moral judgement, must rest on solid doctrinal foundations (on which see Professor Varuhas’ comments here, from about 37.30). MZAPC certainly makes a material contribution to our understanding of the importance of doctrinal rigour.

This content has been updated on April 8, 2022 at 17:25.