In Australian administrative law, a party seeking that a decision be quashed for what is known as ‘jurisdictional error’ must establish that the alleged error of law was ‘material’ to the decision-maker’s exercise of power. It has been argued that ‘materiality’ means different things in different contexts; for present purposes, an error will be material if there is a realistic possibility that, if the error had not occurred, the decision-maker could have made a different decision.
The threshold for a ‘realistic’ possibility is not high. It cannot be used to import a de facto merits review into the process of identifying jurisdictional error. Instead, the word ‘realistic’ ‘is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that’.
This test, although expressed in straightforward terms, encounters difficulties when decision-makers rely upon numerous, cumulative or intermingled premises to support ultimate findings of fact or which collectively lead to the formation of a state of satisfaction. How can courts ‘untangle’ reasoning of this kind in order to determine whether errors are material? Some of these difficulties are illustrated by the judgment of the Full Court of the Federal Court in PQSM v Minister for Home Affairs.
In PQSM, it had been found at first instance (and it was not challenged on appeal) that the Administrative Appeals Tribunal had failed to have regard to ‘the separate consideration of the effect on the applicant’s partner and his adult children if the cancellation of his visa was not revoked’, impermissibly restricting its consideration to ‘the extent of the applicant’s ties to those people and … the effects upon him’. At first instance, Colvin J found that this failure to comply with the relevant Direction did not give rise to jurisdictional error – because, ‘[h]aving regard to the reasons given for the particular exercise of decision-making power by the Tribunal in this case, the limited nature of the failure to comply with the Direction and the material that would have been considered if there had been compliance’, the applicant had not established that any failure by the Tribunal was material to its exercise of power (in the sense that it had denied him a realistic possibility of another result).
On appeal, Mortimer J (in dissent) was critical of that approach – stating that ‘where, as here, what is involved is the question of the weight to be given to particular considerations, it is not for the Court to “guess”… what the Tribunal, properly instructed and applying an open mind… might have decided’.Her Honour stated, in this regard, that the primary judge had in substance found that ‘the Tribunal would not have changed its mind because the Tribunal had given so much weight to the nature and risk of offending that nothing would have persuaded it out of that view’. This, in her Honour’s analysis, overstepped the bounds of materiality analysis – ‘[s]uch an exercise necessarily involves the supervising court placing itself not in the shoes but in the mind of the Tribunal, and concluding that, on the findings as the Tribunal has subjectively made them, realistically nothing would have changed this Tribunal’s mind’. To do so would be to place the Court itself in the position of the Tribunal in this manner, and to effectively ‘re-conduct’ the weighing exercise that the Tribunal was required to conduct.
The majority judges in PQSM,Banks-Smith and Jackson JJ, disagreed with Mortimer J. Their Honours noted that ‘[w]here a decision-maker has failed to address a mandatory consideration, the task of determining whether taking it into account could realistically have made a difference will sometimes be difficult’ – given that, unlike mere failure to consider specific documents or information, failure to address an entire consideration may mean that a wide range of factual material was not properly assessed in light of that consideration. Their Honours acknowledged that, in conducting an evaluation of materiality in such circumstances, ‘the line between judicial review and merits review may be difficult to discern’, and that ‘it will sometimes be difficult to evaluate the Tribunal’s reasoning without substituting the court’s own reasoning’. Nonetheless, their Honours resolved that, following Minister for Immigration and Border Protection v SZMTA, materiality is an ordinary question of fact – and hence a question for resolution by the Court, ‘on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker’. Their Honours concluded that the primary judge had conducted an objective assessment of the material that was not considered; had concluded that that evidence, ‘in the context of the Tribunal’s actual reasons for decision’, was not sufficient to give rise to a realistic possibility of the Tribunal reaching a different conclusion; and that the primary judge had not erred in this regard.
A subsequent application to the High Court for special leave to appeal was dismissed.
Since PQSM, the High Court majority in MZAPC v Minister for Immigration and Border Protection have clarified that the ‘counterfactual’ question involved in materiality analysis ‘cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made’. In doing so, however, the majority warned that ‘a court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker’. A similar warning was given in by the High Court majority in SZMTA – that ‘[t]he court must be careful not to intrude into the fact-finding function of the Tribunal’.
Respectfully, even following this rearticulation of doctrine, Banks-Smith and Jackson JJ’s approach encounters practical difficulties. One can readily recognise the difficulty of the task confronted by their Honours, and an error will not necessarily be material merely because it occurs within a broader evaluative exercise (or in respect of one factor weighed among many). However, an assessment of the real or prospective weight of a relevant criterion potentially oversteps the limits of the Court’s remit on judicial review.
Mortimer J proceeded on the basis that the weight to be afforded to the effect of the Tribunal’s decision on the applicant’s wife and children was a matter for the Tribunal to determine; it was not a matter upon which the Court could readily speculate, even on the basis of the documentary record of the Tribunal proceedings. This approach did not involve a departure from the true inquiry being as to how the Tribunal in fact made its decision. It merely supposed that strong findings made by the Tribunal could have been weighed differently (or viewed in a different light) had the Tribunal correctly understood its task under the Direction. To posit otherwise is to ‘re-run’ the weighing process in an environment of judicial review, without the institutional or practical advantages enjoyed by the original decision-maker.
Douglas McDonald-Norman is a barrister at 8 Selborne Chambers, Sydney. This post is extracted from Douglas’s paper ‘The Curate’s Egg: When Illogical Premises Infect Ultimate Conclusions’, forthcoming in (2021) 103 AIAL Forum.
 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 -; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 -; MZAPC v Minister for Immigration and Border Protection  HCA 17 -.
 Nguyen v Minister for Home Affairs  FCA 127 .
 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 66 .
 PQSM v Minister for Home Affairs (2020) 382 ALR 195;  FCAFC 125 (PQSM FCAFC).
 PQSM FCAFC  (Mortimer J), citing PQSM v Minister for Home Affairs  FCA 1540 (PQSM FCA) .
 PQSM FCA .
 PQSM FCAFC  (Mortimer J).
 PQSM FCAFC .
 PQSM FCAFC .
 PQSM FCAFC .
 PQSM FCAFC .
 PQSM FCAFC .
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 PQSM FCAFC -.
 PQSM v MHA  HCATrans 31.
 MZAPC 
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 SZMTA .