When will breach of an express or implied condition of a conferral of statutory decision-making authority result in jurisdictional error and who bears the onus of proof of materiality?

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (19 May 2021)

Intro:-

This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.

Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

Facts:-

The appellant is a citizen of India. He arrived in Australia in 2006 on a student visa which expired in 2008. He applied in 2007 for a further student visa which a delegate of the Minister refused in 2012. Having failed to obtain a further student visa, the appellant applied in 2014 for a protection visa. Amongst the claims he made in support of that application was a claim to fear that his uncle would kill him on his return to India in connection with a dispute between his uncle and his father over land in Punjab.

Another delegate of the Minister refused the protection visa in June 2014. The appellant then applied to the Tribunal for merits review of that decision under Pt 7 of the Act.

As required by s 418(3) of the Act, the Secretary gave to the Tribunal documents within the Secretary's possession or control which the Secretary considered to be relevant to the review by the Tribunal. Accompanying the documents so given was a letter notifying the Tribunal under s 438(2)(a) that s 438(1)(b) applied to information contained in specified documents on a specified departmental file. By way of advice under s 438(2)(b), the letter expressed the view that the information should not be disclosed to the appellant or his representative because the information had been "shared by Victoria Police with the Department for investigative purposes only".

The documents specified in the notification included a "Court Outcomes Report" which indicated that the appellant had been convicted of offences in the Dandenong Magistrates' Court in September 2011 including, among other offences, an offence described as "state false name". There is no dispute between the parties to the appeal that the offence described as "state false name" was an offence of dishonesty.

Neither the existence of the notification nor any of the information contained in the documents specified in the notification was disclosed to the appellant by the Tribunal.

Proceeding on the mistaken understanding that the appellant had been invited to a scheduled hearing and had failed to attend, the Tribunal made an initial decision in September 2014, affirming the decision of the delegate. The Tribunal's statement of reasons for that initial decision stated that it had "considered all the material before it relating to [the] application". The statement of reasons went on relevantly to explain that, on the "limited and vague evidence", the Tribunal did not accept the appellant's claim to fear harm in connection with the dispute over land in Punjab. The statement of reasons made no reference to the notification or to any information contained in any of the documents specified in the notification.

When later it emerged that the appellant had not been notified of the time of the scheduled hearing, the Tribunal accepted advice that the initial decision was affected by jurisdictional error[4] and re-opened the review. The Tribunal, constituted by the same member who had made the initial decision, conducted a rescheduled hearing in October 2014 which the appellant attended. The Tribunal made a final decision in November 2014, again affirming the decision of the delegate.

Like the statement of reasons for the initial decision, the statement of reasons for the final decision made no reference to the notification or to any information contained in any of the documents specified in the notification.

There was no dispute between the appellant and the Minister before the Federal Court that the Tribunal's failure to disclose to the appellant the existence of the notification had breached an implied condition of procedural fairness identified in SZMTA. The parties to the appeal were at issue only as to the materiality of that breach to the final decision made by the Tribunal.

Noting that the information covered by the undisclosed notification had been potentially contrary to the interests of the appellant, Mortimer J went on to accept that she could not conclude that disclosure of the notification could realistically have resulted in the Tribunal having made a different decision without first finding that the Tribunal had in fact taken information covered by the notification into account in making the decision.

Unable to find on the evidence before her that the offence of dishonesty had in fact been taken into account by the Tribunal in its findings in relation to that claim, Mortimer J dismissed the appeal.

Issues:-

a) the appellant disputes that he needed to prove that the Tribunal in fact took information covered by the notification into account in making the decision in order to establish that the failure to disclose the notification was material to the decision. The appellant also contends that Mortimer J independently erred by erecting and acting on a presumption of fact that the Tribunal did not take information covered by the notification into account in making the decision and casting the onus on him to displace that presumption.

b) the appellant contends that Mortimer J was wrong to confine her consideration of the materiality of the non-disclosure of the notification to the potential for the offence of dishonesty to have borne on the Tribunal's findings in relation to the appellant's claim to fear harm in connection with the dispute over land in Punjab to the exclusion of consideration of the potential for the other offences referred to in the Court Outcomes Report covered by the notification to have borne on the Tribunal's final decision.

Analysis:-

Proof of materiality of a failure to disclose a notification under s 438(2)(a) of the Act

Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, 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.

The materiality of a failure to disclose a notification under s 438(2)(a) must in that context turn on the potential for information covered by the notification to have borne on the decision which the Tribunal in fact made on the review and on how the Tribunal in fact dealt with that information in making that decision

Failure of proof of materiality

Turning to the circumstances of the present case, there would be no difficulty in accepting as a realistic possibility that the final decision of the Tribunal could have been different had the Tribunal in fact taken the offence of dishonesty referred to in the Court Outcomes Report covered by the undisclosed notification into account in assessing the appellant's credit to reject the appellant's claim to fear harm in connection with the dispute over land in Punjab.

The determinative question is whether the Tribunal in fact so took the offence into account. The answer is that there is simply no basis in the evidence to find on the balance of probabilities that it did.

And nothing in the Tribunal's findings in relation to the appellant's claim to fear harm in connection with the dispute over land in Punjab set out in the statement of reasons for its final decision suggests that it took an adverse view of his credit that was incapable of explanation other than by reference to the Tribunal having treated him with distrust because he had been convicted of the offence of dishonesty. On a fair reading of the statement of reasons, the Tribunal did not disbelieve the appellant's account of the historical circumstances of the dispute. The Tribunal's scepticism was directed to the appellant's account of the ongoing consequences of the dispute. What the Tribunal found in substance was that those ongoing consequences did not provide an objective basis for the appellant to entertain a reasonable fear.

No error in not considering other offences

The short and complete answer to the argument is an extrapolation from what has already been said about the failure of the appellant to prove that the Tribunal in fact took the offence of dishonesty into account. There is simply no basis in the evidence to find on the balance of probabilities that the Tribunal took any part of the information covered by the notification into account in making the decision.

Decision:-

The appeal must be dismissed with costs.