Barrister Julie Zhou discusses the High Court of Australia decision in Minister for Immigration and Border Protection v SZMTA[1] which follows a series of recent cases from the High Court on the role of “materiality” in assessing whether there has been jurisdictional error. Julie presented a seminar on this topic for Legalwise Seminars.
The case concerned a notification made by the Secretary of Department of Immigration and Border Protection (‘Department’) to the AAT under s.438 of the Migration Act. This section is applicable where the Minister has certified that disclosure of certain information would be contrary to public interest or the information was given to the Department or to the Minister in confidence.
If s.438 is applicable, the Secretary of the Department must notify the AAT. The AAT in turn has the discretion to take the information into account and/or to disclose the information to the Applicant.
It was accepted in SZMTA that if the preconditions for the issuing of the Ministerial certificate were not met, then the Secretary would have no authority to notify and disclose the information to the Tribunal. The Tribunal would in turn have no authority to deal with the information pursuant to s.438. Similarly, it was conceded by the Minister that the AAT was bound by procedural fairness in the exercise of its discretion under s.438.
In SZMTA, the matters before the Court all involved allegedly incorrect notification by the Secretary to the Tribunal. The question before the Court was whether the incorrect notification or lack of procedural fairness was sufficient in itself to give rise to jurisdictional error, or whether something more was required.
The Court followed its decision in the 2018 case of Hossain v Minister for Immigration and Border Protection,[2] and found that the incorrect notification must be ‘material’ for there to be jurisdictional error.[3]
A breach is material if it could realistically have resulted in a different decision.[4] It is a question of fact for which the Applicant bears the onus of proof. The Court considered the particular facts of each case and found that the notification would have made no difference to the final outcome and accordingly was immaterial to constitute jurisdictional error.
The dissenting judgement in SZMTA of Nettle and Gordon JJ wholly rejected the concept of materiality. Their Honours noted that the issue of whether there is jurisdictional error and whether relief should be granted in relation to the error found are two distinct issues. Parliament cannot be taken to intend that a decision-maker need only comply with laws to the extent that failure to comply would not bring about a different result.
For Nettle and Gordon JJ, the issue of jurisdictional error is black and white – there is or there is not jurisdictional error. “It cannot be a little bit invalid or a little bit beyond power”.[5] If a decision is beyond power, it is invalid.
Key take-aways for practitioners out of the case of SZMTA are as follows:
- Materiality is here to stay. The High Court has consistently found since Hossain that an error must be material to be jurisdictional, i.e. that it could have realistically made a difference to the outcome.
- The onus is on the Applicant to prove that the error alleged would have made a difference to the outcome.
- It is still available for the respondent to raise the issue of whether the discretion to grant relief should be refused due to immateriality or futility – this is a forward-looking exercise that looks at the utility of remitting the matter, for example, back to the decision-maker.
Julie Zhou practices in administrative, industrial and commercial law. She accepts briefs in these areas. Before coming to the Bar, Julie was senior in-house counsel at Monash University where she acted for and advised the University on issues of public and administrative law, disciplinary proceedings, discrimination and negligence claims. Julie was also in-house counsel for State and Federal governments in the ACT and in Victoria. She was a solicitor advocate for the Commonwealth Department of Human Services, appearing in merits review proceedings in the AAT. While at DHS, Julie also gained experience in employment law, freedom of information, privacy and secrecy. She practised in commercial law at Public Transport Victoria, providing legal advice in a number of public transport and infrastructure projects. Julie is a sessional lecturer at RMIT, where she teaches administrative law. She is reading with Jim McKenna. Her senior mentor is Paul Anastassiou QC. Contact Julie at Julie.zhou@vicbar.com.au or connect via LinkedIn 
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[1] CQZ15 v Minister for Immigration and Border Protection, BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
[2] (2018) 92 ALJR 780.
[3] SZMTA at [44].
[4] Ibid [45].
[5] Ibid [94].
